A Handbook of Dispute Resolution

ADR in Action

Karl J Mackie, Karl Mackie

• Publisher: Routledge
• Year: 2013
• eBook ISBN:
  9781134952809
• Topic: Scienze sociali
• Subtopic: Sociologia

A Handbook of Dispute Resolution examines the theoretical and practical developments that are transforming the practice of lawyers and other professionals engaged in settling disputes, grievance-handling and litigation. The book explains what distinguishes ADR from other forms of dispute resolution and examines the role ADR can play in a range of contexts where litigation would once have been the only option, such as family law and company law. In some areas, like industrial relations, ADR is not an alternative, but the main method of conflict-intervention, and several contributors draw on their experience of negotiating between management and unions. A wide variety of methods is open to the non-litigious, including resort to Ombudsmen, negotiation, small claims courts and mini-trials; these and other options receive detailed attention. Given the newness of ADR as a discipline, questions about the training of mediators and about the role of central government have not yet been resolved. The final section of the book is devoted to discussion of these issues. Case studies are drawn from the international arena - examples from China, Canada, Australia, Germany and North America place ADR in a cultural and historical perspective.

1 Dispute resolution: the new wave

Karl J. Mackie

THE ADR MOVEMENT

While much of Eastern Europe rediscovered the ‘rule of law’ in 1989, in the same year a less newsworthy, but in its own way still extraordinary, event took place on Hawaii for a nation well experienced in the rule of law. The American Bar Association, representative of some 800,000 US lawyers in the world’s most ‘sue-conscious’ society, devoted its annual convention there to the theme of ‘Resolving Disputes in Pacific Ways’. The choice of theme, leaving aside its geographical aspirations, reflected the remarkable success within some two decades of the concept of ‘Alternative Dispute Resolution’, a concept that has now established its acronym, ADR, as a term of art. ‘ADR’ – alternatives to litigation as a means of dispute resolution – was being explored not only in the substantive debates amongst the lawyers attending the convention, but also in reports of new dispute resolution legislation, mechanisms, projects and services talcing place within many of the states (Hawaii itself a very active participant in this) – not to mention the posters, badges, T-shirts and fortune cookies promoting the concept.

ADR has quietly slipped into the mainstream of legal practice. For some, the mention of ADR signals debate over whether some means for dealing with conflict is faster or better than litigation, while for others, ADR represents a reminder of traditional notions of legal negotiation and settlement. Both views miss the point. Over the past two decades ADR has become a cornucopia of processes, procedures and resources for responding to disputes, all of which supplement rather than supplant traditional approaches to conflict. Contrary to its label, ADR is not an alternative or substitute at all; it adds useful tools to an attorney’s existing professional tool box.

(Dispute Resolution First Aid Kit for Attorneys, ABA General Practice Section, 1988, Introduction)

As the chapters in this handbook demonstrate, however, the United States is not alone in its interest in developing or improving alternatives and supplements to litigation. Nor is it alone in a revival of interest in the theory and processes of dispute resolution generally. And ‘revival’ is the most appropriate term in this context since too much can be claimed for ADR as a modern movement. Many of the techniques adopted in ADR, such as mediation, have an ancient history (Stein 1984) or have been used for decades in some fields such as labour relations or international affairs (Merrills 1984). Similarly the concern with reforming the delays and costs of the legal process have a long pedigree (e.g. Pound 1906) and can be seen as part of the historical ebb and flow of managing the conflicting and competing concerns within legal processes (Tomasic and Feeley 1982: Introduction). The forces behind the development of administrative tribunals in the UK, for example, share many of the characteristics of the concerns of the ADR movement, promising ‘cheapness, accessibility, freedom from technicality, expedition and expert knowledge’ (Franks 1957: para. 406).

However, the ADR movement stands out for its success in crystallizing the concerns of a range of constituencies interested in reform of legal practice as well as of those keen to re-examine the wider potential of varied forms of dispute resolution. In turn it has stimulated experimentation, provided new models of dispute resolution, new applications of older methods, new forums for dispute resolution, and a new emphasis in lawyer education. Thus this handbook surveys some of that American experience as well as exploring developments in the UK and other countries.

The explosion of interest in dispute resolution in the late twentieth century should perhaps come as no surprise. Dispute resolution is clearly a ‘growth industry’ in a modern world that can generate disputes or social conflict (and, through the communications media, heightened community awareness of such problems) as fast as it generates new technologies, new forms of relationship, and new social problems to take their place alongside many well-trodden dispute contexts. As the chapters in this handbook demonstrate, pressure for reform and expansion of dispute resolution mechanisms has been building up in the UK and other countries, sometimes stimulated by the ‘ADR movement’ per se, but more often by the internal dynamic of pressures to manage areas of social conflict in more ‘effective’, ‘efficient’ and ‘appropriate’ ways. One of the beneficial side-effects of the ADR debate has been to expose for scrutiny many of the assumptions and criteria behind such labels.

The philosophical roots of the movement lie in a patchwork of concerns generated by the philosophical and professional aftermath of the 1960s’ generation: concern with peaceful resolution of disputes from community to global contexts; recognition of the failure of many traditional social mechanisms to respond to the new challenges of a consumer-led society; a renewed emphasis on a search for community living and a community justice to match it; an undermining of the concept of professional expertise and status in favour of client self-direction; a wave of anthropological studies which brought attention to the roots of community dispute resolution mechanisms, forms which were simpler in meaning and structure and less tainted by bureaucratization and professional monopoly. The development of these ideas has also struck a sympathetic chord amongst those faced with the practical difficulties of how to ease the increasing caseload and logjams of the courts.

Many disciplines and interests have therefore contributed to the motive force of dispute resolution growth. The ADR movement as such, however, has received its most specific expression in legal scholarship, arising from the increasing dominance of law and legal or quasi-legal institutions as vehicles to achieve social justice and social control simultaneous with a deepening concern (particularly in the United States) with ‘the pathology of litigation’ (Henry and Lieberman 1985). Nevertheless the varied nature of the philosophical roots of ADR can be gauged by the different concerns which still guide ADR developments. Goldberg et al (1985:5), for example, identify four separate goals discernible within the movement, goals which may overlap and conflict:

1 to relieve court congestion as well as undue cost and delay

2 to enhance community involvement in the dispute resolution process

3 to facilitate access to justice

4 to provide more ‘effective’ dispute resolution.

They define an effective dispute resolution mechanism as ‘one that is inexpensive, speedy and leads to a final resolution of the dispute. At the same time it should be procedurally fair, efficient (in the sense of leading to optimal solutions), and satisfying to the parties’ (Goldberg et al. 1985: 7).

This convergence of interests has given a new energy and focus for experimentation, whether through the use of established dispute resolution methods (such as mediation and ombudsmen) in new contexts, or in the development of relatively novel methods of dispute resolution (such as the ‘mini-trial’ and ‘med-arb’) and novel dispute resolution institutions and practices (such as the ‘Multi-Door Courthouse’)· Finally, the ADR movement has been instrumental in renewing the challenge to the prevailing approach to legal education; an approach which continues to emphasize case-law, appellate trial judgments and adversarial professional philosophy disproportionately to the many other contexts of dispute resolution involving legal rules and practice, to the many skills of dispute resolution effectiveness other than black-letter law interpretation, and to the diverse professional role-models available other than that of lawyer as intellectual and procedural gladiator.

ADR OR DR?

The concept of mechanisms that are appropriate to assist the resolution of disputes can be said to run parallel to the existence of human community. Systems of dispute resolution in early societies gave rise in turn to the (ultimately) sophisticated and elaborate system of dispute resolution represented by modern law and legal processes (Stein 1984). Proponents of ADR have claimed, putting the concept in its simplest terms, that there are other and often ‘better’ routes to settle disputes than available through this developed framework of ‘traditional’ litigation procedures. Thus the adjective ‘Alternative’. However, as debate and practice have developed, this simple approach has been refined.

Paradoxically most proponents of ADR are now agreed that the expression ‘alternative’ is an inappropriate one, although their reasons or emphases for this may differ. First, there are many areas of social dispute which have not been associated with litigation as a dispute resolution mechanism, so that the issue of finding an alternative to litigation is not a relevant or helpful starting-point (Indeed the problem may be in some cases how to encourage and improve access to litigation.) Neighbour or consumer disputes, for example, are often seen by an aggrieved party as too ‘minor’ to contemplate litigation. On the other hand, potential business partners may reach an impasse in negotiations over a contract, but the alternative may be to do business elsewhere, not to litigate.

Second, it is well known that most disputes for which the litigation system is a recognized forum never reach a trial. Even amongst those which are formally entered into the litigation process by writ or summons, the pattern is similar – some 90 per cent or more typically are settled out of court or withdrawn before trial. In these cases it is therefore litigation which is the minority ‘alternative’ method to other major dispute settlement processes. (This is even more true of many Asian and other societies, where there is historically greater emphasis on social harmony and avoidance of conflict rather than the American-style individualistic pursuit of rights. From this perspective what the Americans call alternative dispute resolution methods can be seen rather as an attempt to return to earlier community models of dispute settlement – ‘back-to-basics’ dispute resolution.)

Third, there has been an emerging recognition that the value of ADR is in its emphasis on thinking of a spectrum of dispute resolution mechanisms which can be judged by how appropriate they are to a particular dispute and its substance, context and parties. There is a ‘universe of disputes’ and a spectrum of dispute resolution mechanisms which may be designed to match the various elements within this universe. Within this spectrum, litigation – dispute settlement before a judge in a public forum in accordance with recognized legal rules – has a valid place as appropriate to many types of community disputes. The term ‘alternative’ has, from this perspective, an unfortunate connotation of a rebel movement, an attempt to oust the courts and lawyers from dispute resolution mechanisms. Most proponents of ADR are seeking not to oust the courts and lawyers but to make them more aware of, and more skilled in selecting from and using, the range of possible dispute resolution processes appropriate to settling a dispute. Finally, many of the developing ADR processes are in fact being incorporated into court procedures or adopted by legislation as recognized adjuncts to settlement mechanisms through the courts.

Thus there has been a growing tendency to omit the expression ‘alternative’ from titles of textbooks on dispute resolution (e.g. Goldberg et al. 1985; Riskin and Westbrook 1987). Despite a number of attempts to find a new adjective and/or acronym, however, ‘Alternative Dispute Resolution’ and its acronym remain the most widely recognized terms of art to describe the range of processes, other than litigation, used to settle disputes. They are used as such in this book. It is important to bear in mind, however, that a full understanding of dispute resolution methods needs to encompass the role of litigation practice and management of litigation. Also, that the pressures which have spawned ADR developments are also transforming traditional litigation practice (see chapter 3 by George Applebey in this handbook). These topics are, however, the staple diet of standard legal textbooks, and so do not form a major part of this handbook.

THE CRISIS IN DISPUTE RESOLUTION

The use of the term ‘alternative’ and the fact that the concept of ADR has been taken more on board by American legal scholars and lawyers do help to demonstrate an important source for the revival of interest in dispute resolution. There is a crisis in many countries in terms of overload of the litigation system, reflected in extensive delays before court hearings and judgment, particularly but not exclusively in civil matters. Alongside this, and often seen as a contributory cause of it, is a social structure of legal practice which has proved difficult to change and is a major element in the costs of bringing a legal action and in public perceptions of the difficulties of enforcing or defending rights or advancing disputes through the courts. That crisis and the accelerating costs of using lawyers are most advanced in the United States although they are also well recognized as demanding reform in the UK.¹ (See Mackie 1989; Lord Chancellor’s Department 1988.)

Also under attack by the ADR movement are the assumptions that form part of the lawyer’s ‘standard philosophical map’ derived from legal education and the conventions of the profession (Riskin 1982) that is that within an ‘adversarial’ system of law, the lawyer’s responsibility is to seek to ‘win’ for the client using every tactic that is professionally allowable (or not explicitly prohibited); and that the object of the process is victory in relation to a carefully defined question of principle as applied to (usually) a definite past incident or incidents. Thus trials issue narrow win-lose outcomes rather than problem-solving solutions which take into account the context of the dispute, the merits on both sides and the wider relationship of the parties, past, present and future; law firms handle cases in ‘litigation departments’ rather than ‘settlement departments’ – although most of the time they settle rather than go as far as trial (but often for negative reasons of cost considerations and uncertainties of trial judgment rather than positively negotiated mutually satisfactory outcomes); relations between clients and client attitudes to legal action become soured by legal wrangling and procedural hurdles motivated by lawyer obsession with technical victories.

This backcloth philosophy to disputing is seen as damagingly restricted in its purpose and vision.² Parties tend to lose control of the process and become forced into narrow, adversarial positions to fit the professional framework. Client problems and the solutions to such problems, however, more often than not fail to fit into such a narrow strait-jacket but are complex and interactive in nature, whether in terms of neighbourhood disputes or crime, marriage relations, labour-employer concerns, or in terms of commercial activity and transactions in the world of business. Reappraisal of dispute resolution methods has therefore often been directed at finding ways to return to more socially harmonious procedures and to methods which will get to the roots of a problem more creatively and effectively or which will better enhance transactional bargaining. This new emphasis has also led to reconsideration of basic negotiation skills.

Nor is this desire to discover new approaches fuelled only by motives of altruism or philosophical exploration. It also reflects concern amongst lawyers that costs, delay and unsatisfactory service are driving potential or existing clients away, either to forgo their rightful claims against other parties or into the arms of other professions and dispute resolution businesses. (Unlike the USA, however, the idea of private sector dispute resolution agencies has not yet caught on in the UK although some attempts are being made to establish them in the field of commercial disputes.)

DISPUTING – PROCESS AND CONTENT

One can speak of ADR as a movement in the United States, without exaggeration, because of the extent to which study and debate have focused on procedural mechanisms as such, that is on processes of negotiation, mediation, conciliation, and so on. This theoretical emphasis has not been so strongly reflected in other countries. Interest in the UK has primarily been context-based. Energies, intellectual debate and experimentation have primarily concerned the substantive area of dispute e.g. family conciliation and mediation, consumer arbitration and ombudsman schemes, commercial arbitration reforms, final-offer arbitration developments in industrial relations.³ (Significantly the area where there has been most interest in ‘ADR’, commercial business-to-business relations, is also the most US-influenced.)

While it may be possible to separate process and context issues at the level of concept and theory, in practice the two are often inseparable, if only by reason of the fact that the history and culture of a dispute arena are inevitably enmeshed in any dispute. Nevertheless the act of exploring the varied forms and contexts of dispute resolution may be a vital stimulus in enhancing awareness of other options and thereby encouraging flexib...

Table of contents

• Cover Page
• Half Title Page
• Title Page
• Copyright Page
• Contents
• List of Tables and Figures
• List of Contributors
• Acknowledgements
• 1 Dispute resolution The new wave
• Part I Dispute resolution mechanisms and procedural justice
• Part II Disputes in social context
• Part III ADR Some international experience
• Part IV Training, research and futures
• Postscript – ADR in action
• References
• Name index
• Subject index