On Friday I had the opportunity to hear U.S. Magistrate Judge Wayne D. Brazil deliver the James D. Ellis Lecture at the University of Missouri School of Law. Judge Brazil is well known in ADR circles as one of the (if not the) most pro-ADR jurists in the country. His talk was an interesting retrospective of court-connected mediation and the growth of the system in the Northern District of California.
Of many important points that he made, the one that struck me the most came from his notion of the philosophical underpinnings for court-connected ADR programs. Brazil sees the courts as public service institutions. So he looked at how many cases received traditional judicial services once civil proceedings had been instituted. According to him, 1.3% of those cases went to trial, 7.8% were granted summary judgment, and less than 5% were dismissed through other motion practice (i.e. 12(b)(6) motions, etc.). He said that at most only 20% of the civil cases were getting the vast majority of the court’s traditional services judicial services. He wasn’t exactly sure what was happening with the other 80%, but he believes they were simply leaving the system because the transaction costs of using the court’s services were too high.
While there are several problems associated with participants being frozen out of the judicial process, Brazil noted that courts are marginalizing themselves from the public. By providing free or low cost ADR services, he argued, courts can reconnect with the public by providing more services to those who look to the court system for help. Brazil’s idea harkens back to the Multi-Door Courthouse concept, and this public services argument may be the most persuasive policy reason to support court-connected ADR in the face of continued funding pressures.
