University of Pennsylvania Law Review
In this Article, the author argues that mandatory, non-binding federal court-annexed arbitration programs will not succeed in increasing access to justice, and may in fact decrease access to justice for poorer litigants, precisely the people the programs were designed to help. After exploring the effects of such programs on parties' litigation decisions and demonstrating that the programs are unlikely to create private or social benefits, the Article explores the attributes of private ADR tribunals that parties find desirable and the many ways, apart from reducing cost and delay, that private ADR agreements create value. The Article concludes that, while the promise of the court-connected ADR movement for solving the problems facing the federal courts is limited, procedural reform that explicitly permits parties to combine private ADR and traditional adjudication might be desirable.
Lisa Bernstein, "Understanding the Limits of Court-Connected ADR: A Critique of Federal Court-Annexed Arbitration Programs," 141 University of Pennsylvania Law Review 2169 (1993).