Source: (2012) Marquette Law Review. 95:927-940.

The traditional assumption of "one size fits all"-where that size was adjudication by third parties in a public space-has withered in the face of the growing diversity of conflict resolution practice, both private and public. Many courthouses now offer mediation programs, neutral evaluation and assessment services, counseling, duty counsel services, case management, and judicial settlement conferencing programs. The importance of attempting to resolve disputes short of a full trial is fully accepted among policymakers, for whom it makes obvious economic sense, and is increasingly accepted by members of the bench and bar, who must continue to protect the rights and interests of disputing parties. This plethora of processes-with new programs being added all the time-often feels messy and confusing. We sometimes crave the certainty and simplicity of the days before the expansion of ADR in the courts where there was just one process: litigation. Practically speaking, it is also easier to marshal support behind one or two demonstrably effective core programs than to keep testing and evaluating new pilot schemes. However, I shall argue here that we have no choice but to keep innovating if we are to meet the new challenges of change, despite how untidy and unsettled that sometimes feels. (excerpt)