Various forms of alternative dispute resolution (ADR) are increasingly taking the place of litigation to resolve disagreements among parties. ADR is frequently imposed by court rule or legislative command for certain types of cases, or compelled by courts when private parties contract to use ADR. To date, ADR doctrine has focused on the structural issues attendant to bringing these processes into the mainstream of American dispute resolution. This Article contends that courts must now address the question of whether ADR-both court-related and contractual-can constitute state action, and therefore be subject to constitutional restraints. The author surveys the history and modern structure of ADR, and, focusing primarily on arbitration, analyzes it in light of the United States Supreme Court's state action doctrine. He concludes that both court-related and contractual ADR can constitute state action, and therefore be subject to constitutional protections, such as due process, at some level.
Richard C. Reuben, Public Justice: Toward A State Action Theory of Alternative Dispute Resolution, 85 Cal. L. Rev. 577 (1997)