Can ADR become unjust?

The honest answer—grounded in experience, judicial authority, and academic critique—is yes.

ADR is a powerful tool, but it is not morally neutral, nor is it automatically fair. When applied without safeguards, transparency, or regard for power imbalances, ADR can quietly produce outcomes that undermine justice rather than advance it.

This article explores when and how ADR becomes unjust, using real-world examples, landmark cases, and respected legal scholarship. Our goal is not to attack ADR, but to restore balance, honesty, and trust in how it is used.

Understanding Justice in Dispute Resolution

Justice in law is not defined solely by:

Speed
Cost savings
Settlement rates

True justice includes:

Fairness of process
Equality of bargaining power
Protection of rights
Transparency and accountability

ADR often excels at efficiency—but justice demands more than efficiency.

As Professor Mauro Cappelletti emphasized in Access to Justice, procedural shortcuts that compromise fairness ultimately weaken legal legitimacy.

1. When Power Imbalance Corrupts ADR Outcomes

Equality Is Assumed—Not Guaranteed

ADR presumes that parties negotiate as equals. In reality, many disputes involve stark power imbalances:

Employer vs employee
Corporation vs consumer
Landlord vs tenant
State vs citizen

In such situations, ADR may pressure weaker parties into “agreement” they cannot truly refuse.

Legal scholar Owen Fiss, in his seminal work Against Settlement, warned that settlement-driven justice risks transforming rights into bargaining chips, especially where power is unequal.

📌 Why this is unjust:
Justice cannot depend on who has more money, lawyers, or leverage.

2. When ADR Silences Public Interest and Systemic Wrongs

Private Settlement, Public Harm

ADR is confidential by design. While privacy can be beneficial, it becomes unjust when:

Corporate misconduct is hidden
Systemic discrimination is settled quietly
Repeated harm goes unexposed

In contrast, litigation creates public accountability.

In Brown v. Board of Education (1954), justice required public adjudication—not private compromise. ADR would never have dismantled segregation.

📌 When ADR becomes unjust:
When confidentiality protects wrongdoing and deprives society of legal truth.

3. When ADR Forces Compromise of Non-Negotiable Rights

Not All Rights Should Be Bargained Away

ADR often rewards compromise. But some rights demand vindication, not negotiation, including:

Fundamental human rights
Freedom from discrimination
Constitutional guarantees

In such cases, “middle ground” may still be unjust.

As Lon L. Fuller explained in The Forms and Limits of Adjudication, adjudication (litigation) is uniquely suited for disputes involving normative rights, not mere private interests.

📌 Justice fails when rights become negotiable.

4. When Mandatory ADR Undermines Consent

Voluntary in Theory, Compulsory in Practice

Many ADR processes are no longer voluntary:

Mandatory arbitration clauses in contracts
Court-ordered mediation
Pre-dispute arbitration agreements

Consumers and employees often have no meaningful choice.

In AT&T Mobility LLC v. Concepcion (2011), the U.S. Supreme Court upheld mandatory arbitration clauses—prompting widespread debate about fairness and access to justice.

📌 Why this is unjust:
Consent obtained through imbalance or fine print is not true consent.

5. When ADR Lacks Procedural Safeguards

Informality Can Become Vulnerability

ADR’s informality is often praised—but it can also remove:

Rules of evidence
Disclosure obligations
Appeal rights

Without safeguards, stronger parties may:

Withhold information
Dominate negotiations
Exploit ignorance

Courts, by contrast, are bound by procedural fairness and judicial oversight.

📌 Justice requires structure, not just speed.

6. When Arbitration Mirrors Litigation—Without Accountability

Private Power Without Public Oversight

Arbitration is often described as “private litigation.” Yet unlike courts:

Arbitrators are not publicly accountable
Decisions may lack transparency
Conflicts of interest may be harder to detect

Professor Judith Resnik has criticized privatized dispute resolution for shifting justice from public institutions to private actors without democratic oversight.

📌 When ADR becomes unjust:
When private decision-makers wield judicial power without public responsibility.

7. When ADR Denies Effective Remedies

Justice Without Enforcement Is Illusory

Mediation outcomes depend heavily on voluntary compliance. Arbitration awards, while binding, may face enforcement challenges.

Litigation judgments carry the authority of the state:

Garnishment
Seizure
Contempt powers

As emphasized in R v. Sussex Justices (1924), justice must not only be done—it must be seen and enforced.

📌 ADR becomes unjust when remedies exist only on paper.

8. When Cost Savings Mask Inequality

Cheap Justice Is Not Always Fair Justice

ADR is often justified as cost-saving. But:

Arbitrator fees can exclude the poor
Mediation costs still deter low-income parties
“Affordable” outcomes may reflect coerced compromise

Professor Cappelletti warned that access to justice is not achieved by cheaper processes alone, but by fair outcomes.

📌 Justice sacrificed for affordability is still injustice.

9. When ADR Prevents Legal Development and Precedent

Silent Law Is Stagnant Law

ADR produces no binding precedent. Over-reliance on ADR can:

Freeze legal development
Leave important questions unanswered
Create inconsistent private outcomes

In Marbury v. Madison (1803), litigation—not compromise—shaped constitutional governance.

📌 Justice requires law to speak publicly.

10. When ADR Is Used to Delay or Exhaust Weaker Parties

ADR as a Tactical Weapon

ADR can be abused:

To delay inevitable litigation
To drain weaker parties financially
To avoid accountability

Courts have recognized this risk. In Halsey v. Milton Keynes NHS Trust (2004), the court acknowledged that ADR is inappropriate where one party lacks good faith.

📌 ADR becomes unjust when it is used strategically, not sincerely.

When Litigation Restores Justice Where ADR Fails

Litigation is better when:

Rights must be declared, not negotiated
Power imbalance is extreme
Public interest is involved
Urgent or coercive relief is required
ADR has failed or been abused

Courts remain the ultimate guardians of justice, not a last resort of inconvenience.

ADR vs Litigation: Justice-Focused Comparison

Issue	ADR	Litigation
Power imbalance protection	Weak	Strong
Public accountability	Low	High
Precedent creation	None	Yes
Procedural safeguards	Limited	Robust
Enforcement power	Limited	Strong
Transparency	Private	Public

Conclusion: Efficiency Must Never Replace Justice

From professional experience, judicial reasoning, and academic authority, one truth stands firm:

👉 ADR becomes unjust when efficiency replaces fairness, and compromise replaces rights.

ADR is not the enemy of justice—but it is not justice itself.

As lawyers, our duty is not to promote ADR blindly, but to ask the harder question:
Is this process fair, appropriate, and just for this dispute?

Justice is not measured by how quickly a dispute disappears—but by whether rights are respected, power is balanced, and truth is upheld.

Frequently Asked Questions

Can ADR be unfair?
Yes, especially where power imbalance or mandatory clauses exist.

Does ADR always promote access to justice?
No. Access to justice requires fairness, not just speed or cost savings.

When should ADR be avoided?
In public interest cases, rights-based disputes, and where enforcement or precedent is required.

Legal and Academic Authorities Referenced

Brown v. Board of Education (1954)
Marbury v. Madison (1803)
Halsey v. Milton Keynes NHS Trust (2004)
AT&T Mobility LLC v. Concepcion (2011)
R v. Sussex Justices (1924)
Lon L. Fuller – The Forms and Limits of Adjudication
Owen Fiss – Against Settlement
Mauro Cappelletti – Access to Justice
Judith Resnik – Managerial Judges