Hint: The rule isn’t really anti-ADR, even though some ADR practitioners may see it that way.

In fact, the rule represents a fantastic step forward for the idea that disputants ought to have considerable control over the process(es) by which their disputes are resolved.

In this particular case, the state of Oregon has adopted a new rule in several counties under which litigants have the option of declaring having their dispute entered into an Expedited Civil Jury Trial.  Four months tops.  Two depositions max.  Six jurors.  The order from Oregon Supreme Court Chief Justice Paul De Muniz is here.

Yes, it means that disputants will then be exempted from having to go through other mandatory dispute resolution processes like arbitration or mediation.  And yes, the world would be a worse place if litigants never engaged in those kinds of processes.  Perhaps I’ll someday look back and rue the re-ascendance of the civil trial.  But so few cases today are resolved by trial that I cannot imagine that this modest improvement in our state courts’ approach to litigation will spell the death knell of anything worth saving.

I wrote an article some years ago, entitled, “Customized Litigation,” in which I said:

Henry Ford once said, in reference to his Model T automobiles, “Any customer can have a car painted any colour that he wants, so long as it is black.”

Our judiciary has unfortunately embraced Henry Ford’s sense of consumer choice.  Courts today essentially tell disputants that they can have any color of litigation they want, so long as it’s the one that already exists.  Observers on both sides of current debates about litigation seem to share in this vision of litigation as a unitary, choice-less process.  Proponents of litigation extol its truth-seeking and justice-providing virtues.  Critics point to the delay, expense, and uncertainty that accompany litigation.  And underlying both of these commentaries is a relatively uniform vision of litigation—as if litigation necessarily has a (single) color, with the only argument being about whether that color is the best (single) color.  …

Ford would fare poorly in the crowded marketplace today if it persisted in offering customers only one color of automobile.  With the meteoric rise of both mediation and arbitration, the marketplace for dispute resolution processes is also increasingly crowded.  The time has come for our courts to offer prospective litigants more choices.

I applaud Oregon’s courts for their step toward customized litigation.

MM