NCJ Number
112467
Journal
Creighton Law Review Volume: 21 Issue: 3 Dated: (1987-1988) Pages: 801-822
Date Published
1988
Length
22 pages
Annotation
This article examines and evaluates the characteristics and significance of the adversary process in the existing system for dispute resolution and argues that increased use of nonjudicial methods to resolve disputes may diminish the influence of the adversary process in the work of lawyers.
Abstract
The costs and benefits of the adversary process are discussed, and its usefulness examined. Dispute resolution, it is noted, can be carried out in a number of a ways. Sometimes, when the law is changed, disputes can be made moot by eliminating certain defenses; for examples, disputes regarding strict liability in products liability and no-fault divorce in family law were eliminated by legislation. Alternatives to the adversary process include the creation of dispute-resolving agencies and the use of agreement-promoting procedures such as negotiation, mediation, and mini-trials. Sometimes the courts themselves can recommend extra-judicial alternatives such as arbitration to parties. It is generally agreed that many types of legal disputes, including child custody battles, are unsuited to the adversary process. In the future, Americans can expect their several levels of government to offer an expanding set of alternatives to the adversary process. Law schools must prepare new lawyers and restrain old lawyers to be comfortable in using not only the adversary process but also many other dispute resolution alternatives. 35 footnotes.