A family court requires all parents to attempt mediation before litigating custody disputes. Most cases settle, saving court time and preserving relationships. A few involve domestic violence where victims feel pressured to negotiate with their abusers before the court will hear them. A small claims court makes mediation mandatory for all cases under $10,000. Parties reach agreements faster and cheaper than trials would allow, but some vulnerable parties accept unfair settlements because they do not understand their legal rights and see no path to adjudication. A judge refers a case to arbitration and adopts the arbitrator's decision as a court order, giving informal process the force of law. The formal legal system increasingly incorporates, encourages, and sometimes requires alternative dispute resolution. Whether this integration expands access to justice or erodes the protections that formal legal processes provide depends largely on whether ADR complements or replaces traditional courts, and whether parties have meaningful choice or face ADR as a mandatory hurdle.
The Case for Systemic Integration of ADR
Advocates argue that integrating ADR into the legal system serves everyone's interests. Courts are overwhelmed with backlogs that delay justice for years. Most civil and family cases settle eventually anyway, yet parties spend enormous resources on litigation before reaching the agreements they could have achieved through mediation months or years earlier. Mandatory mediation before trial reduces unnecessary litigation, helps parties understand the strengths and weaknesses of their positions through neutral facilitation, and preserves court capacity for cases that genuinely require adjudication. From this view, court-connected ADR programs make mediation and arbitration accessible to people who would never know these options existed. Subsidized or free court-annexed mediation serves those who cannot afford private mediators. Judges referring appropriate cases to ADR use expertise to identify disputes where alternative processes will work better than adversarial proceedings. Legal recognition of ADR agreements through consent orders gives parties certainty that mediated settlements have the same enforceability as court judgments. Countries with well-integrated ADR systems show better access to justice outcomes: faster resolution, lower costs, higher satisfaction, and courts able to focus resources on complex cases requiring judicial determination.
The Case for Protecting Court Access
Others warn that making ADR mandatory creates barriers to justice masquerading as efficiency measures. Requiring mediation before allowing court access forces parties into processes that may not serve their interests, particularly when power imbalances exist. A survivor of domestic violence should not have to mediate with their abuser before the court will protect them. A tenant facing illegal eviction should not be required to negotiate with their landlord before accessing legal remedies. From this perspective, mandatory ADR serves court administration by reducing caseloads but disserves individuals who need the protections that formal legal processes provide. Mediation pressures parties to settle even when settlement is not in their interests. Arbitration, when mandated by courts or contracts, denies the right to trial and appeal. Moreover, integrating ADR into the legal system changes its character. What worked as voluntary, party-controlled process becomes coercive when courts require it. Mediators who were facilitators become gatekeepers who must report back to judges about parties' cooperation. The informal flexibility that made ADR valuable becomes standardized procedure that loses the advantages of both informal resolution and formal adjudication. The solution is making ADR genuinely voluntary: available as an option, perhaps encouraged through information and incentives, but never required as a precondition to accessing courts.
The Mandatory Mediation Paradox
Research on mandatory mediation shows mixed results. Some studies find settlement rates no higher than voluntary mediation, suggesting that forcing unwilling parties into process adds time and cost without improving outcomes. Other research shows mandatory programs succeed precisely because they require parties who would never voluntarily mediate to try it, and many reach agreements they would not have without the requirement. Whether this represents mandatory mediation working as intended or pressuring parties into settlements they would have rejected if genuine choice existed depends heavily on perspective. Meanwhile, mandatory mediation in domestic violence cases has become so controversial that many jurisdictions exempt these cases or require specific protocols. Yet determining which cases involve domestic violence sufficient to warrant exemption happens inconsistently, with some victims forced into mediation despite abuse allegations while others who might benefit from supported mediation are denied the option.
The Enforcement and Review Problem
When ADR agreements are filed with courts as consent orders, they become legally enforceable like judgments. This provides certainty but creates problems when agreements were reached through flawed processes, under pressure, or without adequate understanding. Courts generally defer to agreements parties signed, reviewing them only for obvious unconscionability or illegality. Someone who felt pressured by a mediator or intimidated by the other party into accepting unfair terms has limited recourse once a consent order exists. From one view, enforcing agreements parties signed respects their autonomy and the finality that makes ADR efficient. From another, it locks people into outcomes they would not have accepted with adequate information and genuine choice. Whether agreements reached through ADR should receive the same deference as court judgments, or whether courts should review them more carefully precisely because they lack the procedural protections of litigation, remains unresolved. Meanwhile, appealing or setting aside consent orders is difficult and expensive, often requiring the very legal resources that mandatory mediation was supposed to make unnecessary.
The Screening Challenge
If ADR works well for some cases but poorly for others, effective integration requires screening to identify which disputes suit alternative processes. Neighborhood disputes between relatively equal parties may be ideal for mediation. Custody cases involving domestic violence are not. Complex commercial matters with sophisticated parties may benefit from arbitration. Consumer disputes with power imbalances may not. The challenge is developing screening mechanisms that identify appropriateness reliably. Self-screening where parties choose whether to mediate assumes they understand their options and face no coercion. Judicial screening where judges refer cases to ADR assumes judges can identify power dynamics and appropriateness in brief case conferences. Categorical screening that exempts certain case types creates rigid rules that miss nuance. Whether any screening approach can reliably distinguish cases where ADR will expand access from cases where it will deny justice determines whether mandatory or encouraged ADR serves its intended purposes.
The Question
If courts cannot handle their caseloads and most cases settle eventually anyway, does requiring ADR before litigation expand access by resolving disputes faster and cheaper, or does it create barriers that force people into inferior processes before allowing them the justice system was designed to provide? Can integration preserve ADR's voluntary, flexible nature while making it systematic enough to reduce court backlogs, or does bringing ADR into the formal system inevitably change it in ways that serve institutional interests over individual needs? And when power imbalances mean some parties need formal legal protections while others benefit from informal resolution, how do we design integration that provides both without forcing everyone through processes that serve only some?