A consumer signs a cell phone contract containing a mandatory arbitration clause buried in fine print. When the company overcharges them $2,000, they discover they cannot sue, must pay for arbitration that costs more than their claim, and face an arbitrator the company has hired repeatedly while they have hired once. An employee with a discrimination claim is forced into mediation where their employer's lawyer dominates the conversation while they sit alone, eventually accepting a settlement far less than what courts might have awarded. A domestic violence survivor pressured into family mediation emerges with a custody arrangement that endangers their children because the mediator missed the power dynamics. Alternative Dispute Resolution promises accessible, efficient, affordable justice, yet critics argue it often delivers the opposite: processes that advantage the powerful, lack accountability, and deny vulnerable parties the protections that formal courts exist to provide. Whether these criticisms represent fundamental flaws requiring major reform or inevitable imperfections in systems that still serve justice better than alternatives shapes the future of ADR.
The Case for Fundamental Reform of ADR
Critics argue that ADR systematically advantages parties with more power, resources, and sophistication while disadvantaging those it claims to help. Employers facing employees, corporations facing consumers, landlords facing tenants, and institutions facing individuals all benefit from informal processes where procedural protections are minimal, discovery is limited, and outcomes depend on negotiation skills rather than legal rights. From this view, mandatory arbitration in employment and consumer contracts represents corporate capture of dispute resolution, forcing individuals to give up their day in court before disputes even arise. Arbitrators dependent on repeat business from corporate clients cannot be truly neutral. Mediation that pressures settlement serves those who can walk away while vulnerable parties who need resolution accept unfavorable terms. ADR lacks the transparency of public courts where proceedings create precedent and accountability. Private arbitration decisions remain confidential, preventing patterns of corporate wrongdoing from emerging. Secret settlements in mediation silence victims and allow harmful practices to continue. Moreover, ADR agreements often lack meaningful enforceability. Someone who prevails in court can enforce judgments through established mechanisms. Someone with a mediated agreement faces informal processes and often returns to court anyway for enforcement. The training and quality of mediators and arbitrators varies enormously, with no licensing requirements or accountability for poor practice. Meanwhile, framing ADR as expanding access disguises that it often provides inferior justice: cheaper because fewer protections, faster because less thorough, more accessible because less rigorous. The solution requires dramatic reform: eliminating mandatory arbitration in adhesion contracts, establishing arbitrator independence and accountability, requiring transparency in outcomes, ensuring power imbalances are assessed and addressed, and protecting the right to court access rather than channeling people toward privatized justice that serves institutional interests over individual rights.
The Case for Measured Improvement Within ADR
Advocates acknowledge problems while arguing that ADR, properly designed and implemented, serves justice better than overburdened courts that most people cannot access. Power imbalances exist in courtrooms too. Self-represented litigants facing lawyers in traditional litigation are as disadvantaged as those in mediation, arguably more so because court procedure is more complex than mediation. From this perspective, the problem is not ADR itself but specific implementations that need fixing. Mandatory arbitration in consumer and employment contexts deserves reform: requiring mutual choice of arbitrators, fee-splitting that does not burden claimants, transparency in outcomes, and allowing class actions where appropriate. But voluntary arbitration chosen by sophisticated parties serves legitimate efficiency interests. Mediator training and certification standards can ensure quality and competence in assessing power dynamics. Domestic violence screening protocols, when properly implemented, can identify inappropriate cases. Court-connected ADR programs provide oversight that private mediation lacks. ODR platforms can include safeguards against power imbalances through design. Moreover, comparing ADR to idealized visions of court access is misleading. For most people, the alternative to mediation or arbitration is not a fair trial but no resolution at all. Courts are too expensive, slow, and inaccessible. ADR provides imperfect justice, but imperfect justice serves people better than no justice. The solution is improving ADR through regulation, training, oversight, and reform while recognizing that it addresses access problems that traditional courts have failed to solve.
The Enforceability Dilemma
ADR agreements depend largely on voluntary compliance, yet enforcement mechanisms vary dramatically. Court-annexed mediation that results in consent orders has the same enforceability as judgments. Private mediation agreements may or may not be enforceable depending on how they are drafted and whether parties file them with courts. Arbitration awards generally must be confirmed through court processes before enforcement. Whether this represents acceptable flexibility that allows parties to choose their level of formality, or insufficient enforcement that makes ADR agreements worth less than court judgments, depends heavily on context and parties' willingness to comply. Meanwhile, returning to court for enforcement often consumes any savings that ADR provided, suggesting that agreements without built-in enforceability serve primarily those who comply voluntarily while leaving others without meaningful remedies. Some argue this demonstrates ADR's cooperative nature producing higher compliance than imposed judgments. Others argue it reveals that ADR works only when parties want it to work, which means it fails precisely when formal enforcement would have been necessary.
The Transparency Crisis
Public courts create precedent, allow pattern recognition of systemic problems, and enable accountability through public observation. ADR operates privately, with arbitration decisions confidential and mediation discussions privileged. From one view, confidentiality enables honest negotiation and protects parties' privacy in sensitive matters. From another, it allows corporations to hide wrongdoing through settlements with confidentiality clauses, prevents workers and consumers from knowing they are not alone in facing certain problems, and removes dispute resolution from public oversight. Whether transparency should be required in all ADR, optional based on party choice, or maintained as confidentiality that makes ADR work, involves tensions between individual privacy and public accountability. When patterns of discrimination, harassment, or defective products emerge only through litigation that mandatory arbitration prevents, confidentiality serves those who benefit from hiding systemic problems while harming those who suffer from them.
The Training and Quality Problem
Anyone can call themselves a mediator with minimal or no training. Arbitrators may be retired judges with extensive legal experience or individuals with questionable qualifications. Quality varies from excellent to incompetent. Whether the solution is licensing requirements, certification standards, and regulatory oversight that would professionalize ADR but increase costs and reduce accessibility, or whether maintaining low barriers to becoming a mediator serves access despite quality concerns, represents tension between professionalization and accessibility. Meanwhile, even trained mediators and arbitrators may lack understanding of power dynamics, trauma-informed practice, cultural competency, or the legal context necessary to ensure agreements are fair and enforceable. Whether ADR can maintain quality while remaining affordable and accessible, or whether choosing between the two is inevitable, determines what reform can realistically achieve.
The Question
If ADR systematically advantages those with more power while disadvantaging vulnerable parties it claims to help, does that constitute fundamental flaw requiring major reform or abandonment, or does it represent implementation problems that better design and oversight can address? When agreements reached through ADR lack the enforceability and transparency of court judgments, have we created privatized justice that serves institutional efficiency over individual rights? And if the alternative to imperfect ADR is often no resolution at all because courts are inaccessible, does that justify accepting ADR's limitations, or does it mean the real solution is adequately funding courts rather than channeling disputes toward processes that deliver inferior justice more efficiently?