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Burger Urges Greater Use of Arbitration to Reduce Court Backlog

August 21, 1985

ST. PAUL, Minn. (AP) _ Chief Justice Warren Burger urged lawyers Wednesday to use arbitration and mediation efforts as a way of reducing the backlog of cases in the overburdened federal and state court systems.

″A host of new kinds of cases have flooded the courts,″ Burger told lawyers at a meeting of the American Arbitration Association. ″(There are) students seeking to litigate a failing mark, professors litigating denial of academic tenure, and another great load on the courts, welfare recipients....″

Appellate judges learn ″very quickly that a larger part of all the litigation in the courts is an exercise in futility and frustration,″ Burger said.

″These protracted cases not only deny parties the benefits of a speedy resolution of their conflicts, but also enlarge the costs, tensions and delays facing all other litigants waiting in line,″ he said.

Burger said increased case loads can be attributed to both lawyers and business leaders, two groups who are natural competitors and strive to win.

″Sometimes I’ve thought there is some form of mass neurosis developing in the country that leads people to think courts were created to solve all the problems of society,″ Burger said.

Referring to union-management grievance procedures, Burger added, ″We must learn from the experience of labor and management that courts are not the best places to resolve certain kinds of claims.″

At the end of World War II, U.S. district courts received roughly 30,000 new civil cases each year, Burger said. By 1984, that figure had soared to 280,000 cases. In 1945, 3,000 appeals were filed with federal appeals courts. The figure for 1984 was in excess of 31,000, the chief justice said.

″The anomaly is that there are better ways of doing it,″ Burger said. ″We’ve got to move a large volume of the private cases out of court and put them into arbitration....″

A case study in the Eastern District Court of Pennsylvania, located in Philadelphia, showed that only 1.5 percent of the cases that went to arbitration wound up in trial, Burger said. By comparison, 8 percent of the civil cases went to trial, he said.

In addition, arbitration could reduce significantly the time it takes to litigate a case, Burger said. In the Pennsylvania study, cases that went to arbitration took an average of seven months to settle compared to an average of 14 months for cases that went to trial.

The legal system must ″learn from the experience of labor and management that courts are not the best places to resolve certain kinds of claims,″ Burger said.

The important contribution of the labor movement is not the collective bargaining contract, but the efficient grievance procedures that have been developed, the chief justice said.

″In terms of cost, time and human wear and tear, arbitration is better by far,″ he said. ″We must now call on the inventiveness, the ingenuity and the resourcefulnees of American businessmen and the American lawyers - the ‘Yankee Trader’ innovativeness - to shape new tools to meet new needs.″

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