SMU Law Review


By the time Professor Richard Delgado and his colleagues wrote their seminal article on the risk of alternative dispute resolution (ADR) facilitating prejudice, ADR programs were well-established in the United States, supported by legislative and court mandates, private contracts, and U.S. Supreme Court decisions. Fairness and Formality: Minimizing the Risk of Prejudice in Alternative Dispute Resolution and Delgado’s subsequent review article, ADR and the Dispossessed: Recent Books About the Deformalization Movement, were cited hundreds of times by scholars and practitioners but did little to stop the movement to substitute mediation, arbitration, and other dispute resolution procedures for public adjudication. Conflict resolution theorists and practitioners celebrated mediation for its relationship-preserving and restorative potential, judges celebrated ADR in its various forms for its potential to reduce court workloads, and institutional defendants publicly welcomed the possibility of reducing legal expenses and delay by relying on mediation and arbitration in lieu of litigation. Informal dispute resolution was touted by all as an antidote to the presumed burdens court procedures imposed on lay litigants. Privately, many corporate defendants hoped that ADR would diminish claiming rates or diminish the settlement value of claims (or both).

Delgado et al. hypothesized that because ADR procedures frequently incorporate features that social science research has identified as facilitating prejudice, the procedures would produce biased outcomes. Although framed in normative terms, their hypothesis is subject to empirical testing. In the three decades following the publication of Fairness and Formality, a small cadre of socio-legal scholars took up this challenge. Using a qualitative content analysis approach, we identified thirty-eight efforts to test empirically the hypothesis that mediation and arbitration create systematic differences in dispute resolution outcomes by gender, race, ethnicity or socio-economic stratum. Using a variety of methods, including laboratory and field experiments, surveys, and analyses of reported outcomes, empiricists have produced contrary and ultimately inconclusive results. Small samples and lack of methodological rigor reduce the reliability of the published findings. In sum, the answer to the question whether informal dispute resolution facilitates prejudice is “we don’t know.” In an era of increasing economic inequality and ever louder expressions of racial, ethnic, and gender prejudice, we have a responsibility to learn more about how public policies that continue to favor alternative dispute resolution are affecting less powerful groups in U.S. society. At the same time, rather than turning our backs on public adjudication, we should invest in ensuring that our courts truly provide “equal justice for all.”