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Way out of courts' gridlock

With fewer judges and more cases, mediation and arbitration are on the ascent.

By Arlen Specter

With the U.S. Senate's judicial confirmation process choked by filibusters and gridlock, the federal courts in Pennsylvania are riddled with vacancies. In Harrisburg's district alone, half the judgeships are open - even though Sen. Bob Casey and I made recommendations to fill those seats, as well as vacancies in the Philadelphia and Pittsburgh districts, almost a year ago.

Alexis de Tocqueville was correct more than 150 years ago when he said almost every controversy in the United States seems to wind up in court. Meanwhile, as our society has become even more litigious, case backlogs have grown, resulting in long delays before parties get their day in court. This problem only gets worse when there are fewer judges, and justice delayed is justice denied.

Part of the answer may be what's known as alternative dispute resolution, including arbitration and mediation. In arbitration, the parties agree to submit their dispute to a person, called the arbitrator, who functions as a judge and issues a binding decision. In mediation, the parties select a person, called the mediator, who seeks to bring them together to mutually agree on a deal.

In my efforts to catch up with the ways the legal world had changed during my three decades in the Senate, I went back to law school to learn how to serve as an arbitrator and as a mediator. I found these alternative approaches very effective at getting to the heart of disputes and resolving them without the formalities and expenses of court trials.

In arbitration, the parties exchange the court system's formal rules of evidence and their right to appeal for simplicity and flexibility. It allows them to agree on procedures tailored to their particular situation. More important, they can choose an arbitrator they have confidence in rather than settling for whomever the court system assigns.

The advantage of mediation, meanwhile, is that it's not adversarial. A mediator can meet with each side to find out the parties' real "bottom line." Parties in a dispute may be understandably unwilling to make concessions to each other for fear of weakening their bargaining positions. But they can make confidential disclosures to a mediator, allowing him or her to find an acceptable compromise. Mediation can also head off contentious confrontations, allowing the parties to maintain more cordial relations.

In addition to time, arbitration and mediation can save litigants money. The costs of litigation have soared, with lawyers' rates running in the hundreds of dollars per hour. Expenses for pretrial motions, depositions, and interrogatories are also high.

My interest in alternative dispute resolution goes back to my days as Philadelphia district attorney, when I started a pretrial diversion program allowing first-time, nonviolent offenders to have their records expunged if they stayed out of trouble for a year and met other conditions. Now known as ARD (Accelerated Rehabilitative Disposition) in Pennsylvania, such programs are used nationwide.

Harvard law professor Laurence Tribe made an astute observation about going to court: "The results do not justify the costs: too much law, too little justice, too many rules, too few results." Arbitration and mediation offer a smart way out.