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1985 Wis. L. Rev. 1359 (1985)
Fairness and Formality: Minimizing the Risk of Prejudice in Alternative Dispute Resolution

handle is hein.journals/wlr1985 and id is 1373 raw text is: FAIRNESS AND FORMALITY: MINIMIZING THE RISK OF PREJUDICE IN ALTERNATIVE DISPUTE RESOLUTION RICHARD DELGADO* CHRIS DUNN** PAMELA BROWN*** HELENA LEE**** DAVID HUBBERT**** Legal commentators have recently begun to focus a great deal of attention on methods of Alternative Dispute Resolution (ADR), such as arbitration, mediation and a host of other informal procedures. Most commentators have argued that these informal alternatives to the courtroom will lead to a more efficient and accessible justice system. The few detractors, primarily members of the Critical Legal Studies movement, have focused on the political shortcomings of ADR. In this Article, Pro- fessor Richard Delgado and his co-authors examine another potential liability of ADR: the possibility that it may foster racial and ethnic prejudice. The authors rely on several social scientific studies showing that people who hold prejudicial attitudes are more prone to act on those attitudes in informal, rather than formal, settings. Thus, when the formalities of traditional adjudication are abandoned in favor of more informal methods of dispute resolution, minority disputants may be placed at an even greater disadvantage than that which they usually suffer. If correct, the con- clusions of this Article seriously undermine the assertion by ADR's proponents that ADR is especially beneficial to the poor and disadvantaged, many of whom are mem- bers of various minority groups. The authors suggest that, to protect minorities, ADR should be reserved for disputes in which parties of comparable status and power confront each other. When confronting opponents of higher status or power, minorities would be well advised to opt for formal adjudication and should not be forced by the courts into informal proceedings. INTRODUCTION Alternative Dispute Resolution (ADR) has been heralded as one * Professor of Law, UCLA. J.D., 1974, University of California-Berkeley. * Clerk, United States Court of Appeals, Third Circuit. J.D., 1985, University of Pennsylvania. SJ.D., 1986, University of Pennsylvania. SJ.D., 1985, University of Pennsylvania. We gratefully acknowledge the encouragement and ideas of Stephen Burbank, and the research of Charles Carreon, Chris Murphy, Patty Shwartz, Maggie Madden, Stephen Lerner, and Diana Paseerba in the preparation of this article. The work was supported by grants from the UCLA Dean's Fund and UCLA Academic Senate. 1359