Amy Cohen (Temple/UNSW) is publishing “The Rise and Fall and Rise Again of Informal Justice and the Death of ADR” in the Connecticut Law Review, available on SSRN. The abstract:
Today, the field of alternative dispute resolution (ADR) is often conceptualized and taught as an apolitical, institutional practice designed to enhance the effective and efficient settlement of legal disputes. But this was not always the case. In the 1970s, scholars imagined mediation as a technique of social and political transformation: a practice that might enable people to resolve disputes without reproducing the inequalities that shaped the society in which they lived. That view of ADR has largely disappeared from the American legal academy. But, as this Article shows, it has not disappeared entirely. Outside the legal academy, prison and police abolitionists are turning to the tools of dispute resolution as an important mechanism of social change. This Article embeds today’s movement for transformative justice in a longer genealogy of informal justice, and it revitalizes a sociolegal perspective that uses micro-level conflict as a critical framework through which to analyze macro-level transformations. The Article ventures that this sociolegal perspective can help respond to the disciplinary crisis that currently faces the field of ADR in American legal education, revealing ADR as a powerful tool for thinking through both the mechanisms and the difficulties of emancipating social and political change.
I saw an earlier version of this paper and (unsurprisingly, given it’s Amy Cohen) it is fantastic.