Against Settlement

Alternative Dispute Resolution (ADR) has become a rallying point for the organized bar and the source of a new trend in the law. The case for settlement, however, rests on questionable grounds. As a generic practice, settlement is not preferable to judgment and should not be institutionalized on a wholesale and indiscriminate basis. Reasons for not encouraging ADR include: 1. the imbalance of power between the contending parties, 2. the lack of authoritative consent because many contestants are entrapped in contractual relationships with lawyers, insurance companies, and others that impair their autonomy, 3. the absence of a basis for continuing judicial involvement, since judgment is often not the end of a lawsuit, but only at the beginning, and 4. justice rather than peace. Sorting cases into 2 types, one for settlement and another for judgment, should be resisted.