The Pound Conference Remembered

Volume 19 No. 1

By

It probably is fair to say that the American Bar Association Section of Dispute Resolution owes its existence to an unnamed mail-order company that mistreated the wrong customer in the mid-1970s. That customer was ABA President Justin Stanley’s wife, Melinda.

Frustrated after several unsuccessful attempts to gain satisfaction for a defective product, she asked her big-time lawyer husband to sue. His answer, of course, was that litigating the case would cost far more than what she had bought was worth.

Having to give that unsatisfying answer to his wife bothered Justin Stanley enough that he decided to do something about it. Taking advantage of his position, the ABA president set up a “Special Committee on the Resolution of Minor Disputes,” which was charged with finding or devising dispute resolution mechanisms capable of settling “minor disputes” effectively and efficiently, seeking to set up and evaluate pilot programs and then promoting adoption of the successful models throughout the country. 

Stanley named Talbot “Sandy” D’Alemberte, then a partner in the Miami firm of Steele, Hector and Davis, as the new committee’s chair. Most of the other members were private attorneys from relevant sections of the bar, along with a judge from the Judicial Division: C.B. Dutton (Indianapolis), Philip H. Lewis (Topeka), Ronald Olson (Los Angeles), George H. Revelle (Seattle), and Felice K. Shea (New York). Professor Frank Sander and I were real exceptions on the committee – academics who had an interest in alternative dispute resolution at a time when few law professors did.

Frank had practical experience with ADR and had served as an arbitrator in commercial and labor union arbitration cases. Probably the nation’s leading academic expert on existing forms and uses of arbitration and mediation, he was a natural choice for the committee. My involvement was more recent and entirely academic. That year I had co-authored a book titled Outside the Courts: A Survey of Diversion Alternatives in Civil Cases under a grant from the National Center for State Courts.[1]

The most innovative concept to emerge from the original special committee, however, was something my co-authors and I had not found in our survey of existing approaches. That was Frank’s idea of a “multi-door courthouse,“ which he introduced in a speech at the National Conference on the Causes of Popular Dissatisfaction with the Administration of Justice – commonly called the “Pound Revisited Conference.” The Conference  was held April 7 to April 9, 1976, in St. Paul, Minnesota, at the very venue Harvard Law School Dean Roscoe Pound had delivered the original address on the “Causes of Popular Dissatisfaction with the Administration of Justice” 70 years earlier. I was fortunate enough to attend.

The conference was an ambitious undertaking, conceived by Chief Justice Warren Burger and implemented with the assistance of the leaders of the ABA and the Conference of Chief Justices. It brought together 300 leaders of the bench and bar, along with a smattering of academics. The goal was to explore fundamental issues and map out a reform agenda for the rest of the century. 

As we gathered in the main conference hall that first day, there was an air of excitement and electricity. Given the organizers and the list of attendees, we knew the gathering could be an important event, though of course we didn’t know what the presenters would say or what, if anything, the conference ultimately would yield.

Professor Sander’s speech was one of three presentations at the opening session on “The Business of the Courts.” The other two were by Simon Rifkind, a named partner at Paul, Weiss, Rifkind, Wharton & Garrison, and Leon Higginbotham, Jr., a longtime federal district court judge in Philadelphia who would shortly be named to the 3rd US Circuit Court of Appeals by President Jimmy Carter. Four commentators followed, including me.[2]

Professor Sander suggested transforming the courts from a forum that essentially offered a single form of dispute resolution — with cases decided by a judge or a jury – into a facility that provided an array of dispute resolution mechanisms. Furthermore, his proposal implied that those other forms of dispute resolution would be publicly available, just as the traditional courts are. 

Perhaps the key element of Frank’s concept was his suggestion, “the grievant would first be channeled through a screening clerk who would then direct him to the process (or sequence of processes) most appropriate to his type of case.”[3] Thus, what later became known as the “multi-door courthouse” would have a single entry point where the dispute would be diagnosed, and the disputant would then be sent to the correct door and the dispute resolution mechanism behind it.[4] 

There was a definite buzz about Sander’s speech, which provoked a great deal of interest in the 12 breakout groups into which the 300 participants were divided to discuss the presentations.[5] The responses ranged from those who thought ADR was good but should be brought within the courts to those who considered ADR inferior to the traditional judicial model and proposed curing “popular dissatisfaction” with more judges and larger judicial budgets, not removal to other forums.[6] For example, Dean Dorothy Nelson, who later became a judge on the 9th US Circuit Court of Appeals, reported that the breakout group she chaired “sort of liked Frank Sander’s many-doored courthouse…but thought it should be within the court system itself.”[7] 

Interestingly, his speech was entitled “Varieties of Dispute Processing”[8] and never mentioned the term “multi-door courthouse”; a magazine editor coined the phrase when he used it in the headline for an article about Sander’s speech. Yet “multi-door courthouse” proved a perfect title for what Sander had envisioned and was forever attached to his influential recommendations for remaking America’s dispute resolution system. 

The Pound Conference “Follow Up” Committee didn’t accept Sander’s notion that the public courts should be the locus for the several ADR mechanisms he proposed in his speech. Instead, they favored a free-standing institution – the “neighborhood justice center” – to implement Sander’s vision for offering disputants a “variety” of ADR options for resolving disputes.[9] Indeed, the development of these centers was the number-one recommendation to emerge from the Pound Conference in 1976. As recited in the report of the conference’s “Follow-up Task Force,” chaired by US Attorney General Griffin Bell:

“We recommend that the American Bar Association, in cooperation with local courts and state and local bar associations, invite the development of models of Neighborhood Justice Centers, suitable for implementation as pilot projects. Such facilities would be designed to make available a variety of methods of processing disputes, including arbitration, mediation, referral to small claims courts as well as referral to courts of general jurisdiction.”[10]

Implementation of this recommendation became the first task for the Special Committee for Resolution of Minor Disputes. The goal was to find locations willing to open facilities that offered mediation or med-arb of a broad range of disputes: landlord-tenant, consumer, intra-family, neighbor-to-neighbor, community issues, etc. The mediators were expected to be paraprofessionals or trained volunteers from the neighborhood, usually or always non-lawyers. The services were to be free or almost free to the disputants.

Several cities created neighborhood justice centers, usually in a single neighborhood on a pilot basis. In Los Angeles, the LA County Bar took it on as a project and appointed a committee to undertake the task of establishing and supervising a Neighborhood Justice Center. Several leading lawyers and judges served on that committee, which chose Santa Monica as the center’s location and obtained a foundation grant to fund the pilot’s first years of operation. That Neighborhood Justice Center opened in 1978, and although it was relocated a few years later and given a new name, some 35 years later the LA County Bar still operates a substantial Dispute Resolution Center.

As our special committee dug deeper into the field of possible solutions to the problem of cost-effectively and fairly resolving minor disputes, it became apparent there were at least three distinct motives for providing dispute resolution mechanisms outside the courts, and each had a different constituency.  Moreover, only one of those motives had anything to do with the name of our committee — the resolution of minor disputes. Those motives were:

1. To reduce the caseloads in the courts, then perceived as being overwhelmed by a “litigation explosion.” The primary constituency behind this motive was the courts — and to a lesser extent litigants who were suffering delays because of overloaded dockets and who felt their cases belonged in the courts more than some others’.

2. To reduce the transaction costs for litigants even for disputes involving stakes that made it economic to have them decided by the courts. Here, the main constituency was institutional litigants with a substantial volume of cases to be resolved each year.

3. To increase access to justice for low-income people and for disputes too minor for courts to handle economically. This one had the least powerful constituency but was the primary focus of the original committee: minor disputes.

In essence, our minor disputes committee, in seeking to find a solution to the “minor dispute,” had surfaced a solution that had application to a far wider range of disputes – major, minor and those in between. So it is no surprise that about three years after its formation, its name was changed to the Special Committee on Dispute Resolution. That special committee later became the Standing Committee on Dispute Resolution and then, as the importance of ADR in the general practice of law continued to grow, the free-standing Section of Dispute Resolution.

In 1980, when Sandy D’Alemberte decided to step down, ABA President-Elect Leonard Janofsky, a fellow Californian, asked if I would take over as chair of what at that time was the Special Committee on Dispute Resolution. I declined, telling him it was still important the committee’s chair be a private lawyer because several forms of ADR did or could remove lawyers from the process. Janofsky then appointed Ronald Olson, another committee member from California, to head the committee. 

I remained on the committee another three years, resigning when I was appointed to the bench. Not many years later, another ABA president handed the committee’s reins to Frank Sander. By that time, ADR had high visibility and broad support in the profession, and Frank was its acknowledged guru. The profession was ready for his leadership, which continues to the current day.      

Earl Johnson, Jr. is a retired Justice of the California Court of Appeal (1982-2007) and is nearing completion of a two-volume history of civil legal aid in the United States.  Earlier in his career he was a trial attorney in the Justice Department’s Organized Crime and Racketeering Section, the second director of the OEO Legal Services Program and a Professor of Law at the University of Southern California. He can be reached at justej@aol.com.

[1] Earl Johnson, Jr., Valerie Kantor and Elizabeth Schwartz, Outside the Courts: A Survey of Diversion Alternatives in Civil Cases (National Center for State Courts, 1976).

[2] See Leo A. Levin & Russell R. Wheeler (eds), The Pound Conference: Perspectives on Justice in the Future (1979). The other three commentators were Harvard Law School Dean Erwin Griswold, Berkeley anthropologist Laura Nader and Judge (and future Attorney General) Griffin Bell.  My own commentary focused on foreign institutions and approaches, based on a worldwide access to justice study I was co-directing, headquartered at the University of Florence, which in part touched on ADR in those countries. Id. at 119-124.

[3] Frank E. A. Sander, Varieties of Dispute Processing, in Leo A. Levin & Russell R. Wheeler (eds), The Pound Conference: Perspectives on Justice in the Future 84 (1979).

[4] For more on this history, see Mariana D. Hernandez-Crespo, “A Dialogue between Professors Frank Sander and Mariana Hernandez Crespo Exploring the Evolution of the Multi-Door Courthouse (Part One)” (2008), http://www.pon.harvard.edu/daily/a-discussion-with-frank-sander-about-the-multi-door-courthouse/ (last visited October 1, 2012).

[5] It also says a lot that Professor Sander was the only presenter whose name was mentioned in the conference’s “Epilogue.” Levin & Wheeler, supra note 1 at 289-294.

[6] Id. at 130-148.

[7] So Dean Nelson’s name for Frank Sander’s proposal wasn’t far from the “multi-door court” the magazine editor had used in later describing Sander’s idea.

[8] Sander, supra note 3 at 65-87.

[9] Levin & Wheeler, supra note 1 at 301. Possibly because Griffin Bell became the US attorney general the following year, the US Justice Department funded three local Neighborhood Justice Center pilots and others were established elsewhere. Id. at 291.

[10] Id. at 301.  Neighborhood Justice Centers are further described in the Follow-Up Task Force’s report at 306-308.

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