APPENDIX D: FUNDAMENTAL QUESTIONS ABOUT THE RELATIONSHIP BETWEEN ADR AND THE COURTS Excerpted from: Carrie Menkel-Meadow, “ Pursuing Settlement in an Adversary Culture: A Tale of Innovation Co-opted or the Law of ADR” (1991), 19 Fl. St. U.L.Rev. 1, at 4-5. 1. What are the values of settlement and of adjudication? 2. When is a court not a court? What makes a court a “special” institution and what should it be doing? Related to these concerns are issues of legal authority for the variations on court adjudication – when a court can “order” someone to settle, require a juror to serve a non-juror function, or exclude the public from a proceedings? 3. What values should a court institutionalized ADR device serve? Who should pay? Who should have access? What are the consequences of using ADR devices for the rest of the system? When should a “public sy stem” subsidize “private agreements”? 4. What are the politics of ADR? Are there patterns of usage? Do particular kinds of clients choose different processes? Are there differences between big cases and small cases, or in the choices of wealthy clients and poorer clients? 5. What should be the system or values implicated in case allocation – should it be a fair market? Should there be restrictions or regulations of case types? Should these programs be voluntary or mandatory? 6. How can we measure the effects of different allocations or assignments to particular processes? How should we measure the “quality ” of justice? 7. What processes are appropriate within our system of dispute resolution? When is adversarialness appropriate, and when is it not? What other processes can be used while preserving our long tradition of process-fairness and rights protection? 8. On what basis should cases be settled, decided, or tried – by considering only legal rules, personal needs, or economic expediency?