Constitutional Gravity: A Unitary Theory of Alternative Dispute Resolution and Public Civil Justice

Under the traditional bipolar model, civil dispute resolution is generally divided into two spheres: trial, which is public in nature and therefore subject to constitutional due process, and alternative dispute resolution (ADR), which is private in nature and therefore not subject to such constraints. In this article, Professor Richard Reuben proposes a unitary understanding of public civil dispute resolution, one that recognizes that ADR is often energized by state action and thus is constitutionally required to comply with minimal but meaningful due process standards. Depending upon the process, such standards might include the right to an impartial forum, the right to present evidence and confront adverse evidence, and a qualified right to counsel. Reuben concludes that the effect of the ADR movement should be the expansion of our concept of public civil justice, rather than its contraction through privatization.