I have started reading “Nudge” by Richard Thaler and Cass Sunstein of University of Chicago. While I don’t know yet what I will think of all their ideas, they have captivated me with some already. Their discussion of “choice architects,” people who have the “responsibility for organizing the context in which people make decisions,” immediately got me thinking about how court ADR programs are designed, particularly decisions about referrals.
The authors describe the example of choice architects in a cafeteria putting salad and fruit at the beginning of the food line to promote healthy eating as a form of “libertarian paternalism,” a phrase they distinguish from the popular meanings of either word. They define “libertarian” as retaining the right to choose, with limited costs to those who do not chose the default, or first, option. For the authors, “paternalism” means promoting the options that make people’s lives “longer, healthier and better” and that will make choosers better off, as would be judged by the choosers.
If a court ADR program were to apply libertarian paternalism in its choice architecture, what would happen? Programs are designed with referral that runs the gamut from completely voluntary (suggested by the parties) to comprehensive (all cases go to ADR with clear, limited exceptions). With libertarian paternalism, I think we would see what we in ADR perceive as “healthy” options set as the default. Mediation, early neutral evaluation or other ADR approach would be expected, but those who do not choose ADR would not experience undue costs for making other choices.
According to the authors, applying this kind of libertarian paternalism in choice architecture constitutes a “nudge,” defined as “any aspect of the choice architecture that alters people’s behavior in a predictable way without forbidding any options or significantly changing their economic incentives.” As I read this, it reminded me of one of my earliest lessons in developing court referrals in the 1980s. Edie Primm, who at the time was running the Justice Center of Atlanta, suggested a “nudge from a judge” would do the trick in getting the lawyers in a courtroom to agree to mediation. While the ADR field has progressed in the level of sophistication (and complication!) with which we can debate exactly how cases should be referred, I suspect that a nudge from a judge is exactly the kind of activity Thaler & Sunstein have in mind when they talk about nudges. For us in court ADR, the continuing question is exactly what form that nudge should take. Maybe when I finish the book, I will have the answer.