Now, my school publishes a symposium on judicial education in our Journal of Dispute Resolution.
You might understandably wonder if we have lost our freaking minds.
I submit not. Rather, I think that this reflects an evolution of our goals and how we define “our” field.
The “A”DR movement originally was defined as an “alternative” to the court system. Many of us have recognized problems with this conception and have substituted different concepts such as “appropriate” or “assisted” DR.
When ADR was defined as “alternative,” this reflected an assumption that the legal system would not accommodate alternatives and that people would have to work outside the traditional legal system to help people use a better process for their situations. This assumption may have been fairly accurate in the 1970s and 1980s, when courts and lawyers generally were not open to alternatives.
Historically, the legal system actually has accommodated and eventually absorbed alternatives. Thomas Main points out that the old courts of equity were an early form of ADR, which eventually merged with courts of law. I noted that our legal history is full of similar examples:
[Our] field is often called “alternative dispute resolution,” though it might more appropriately be called “innovative dispute resolution.” The history of the legal system in the U.S. includes a long series of DR innovations including, but not limited to, commercial arbitration, workers compensation systems, juvenile courts, family courts, small claims courts, labor arbitration, court-connected arbitration, court-connected mediation, and collaborative and cooperative law, among others. Many of these innovations were seen as quite radical when they were first introduced. Over time, they became institutionalized and so widely accepted that they have become accepted as a normal part of the legal system.
Indeed, many of us aspired to have “ADR” incorporated into the regular legal system in various ways, such as diversion to victim-offender programs, referrals to court-connected processes in civil cases, and legal recognition of arbitration or collaborative law procedures, among others. Similarly, in legal education, we have tried to incorporate ADR skills and knowledge in other courses, such as through the LEAPS project.
Adapting Marc Galanter’s concept of “ecology” of dispute resolution, I argued:
[U]sing an ecological mindset, we should focus on promoting a healthy SYSTEM with a variety of desirable dispute resolution species to choose from. Although some might use the ecology metaphor to suggest a vicious jungle where species ruthlessly compete for survival, we should instead choose a concept of creating and managing an environment where species generally coexist harmoniously. From the latter perspective, the dispute resolution field should nurture all of the species (including litigation) to function optimally. In more concrete terms, the goal should be to maintain a system that offers many different high-quality processes including mediation, arbitration, Collaborative Law, Cooperative Law, and court services (including trials), among others, so that parties can choose between good alternatives that have varying advantages and disadvantages.
Value of a Dispute Resolution System Conception
I think that there are several advantages to defining our field in terms of dispute resolution systems. This approach can avoid some problems caused by defining our field in terms of promoting particular processes such as mediation or arbitration. Processes that were innovative when originally introduced become routinized and develop dysfunctions. This is particularly problematic in the legal context, where “creeping legalization” is a recurring dynamic.
For example, arbitration and mediation were introduced with the hope of being informal and enabling the parties to take control of their disputes. As they became institutionalized in the legal system, these values dissipated. Thus some who championed mediation several decades ago have become disillusioned with the way it has developed. Similarly, many of us feel that the courts have gone astray in their arbitration jurisprudence so that the process seems much like litigation, quite different from what was originally intended.
Rather than promoting particular processes, a DR systems conception enables us to focus on achieving particular goals (such as access, self-determination, efficiency, justice, social harmony) and minimizing harms from DR systems as a whole.
Dispute system design (DSD) incorporates a mechanism for periodic re-examination and renewal, which offers the potential of remedying dysfunctions within a system. DSD theory not only involves engagement of various stakeholder groups in setting process goals and designing processes to achieve those goals, it also calls for regular re-evaluation and revision of DR processes. Of course, DSD is imperfect, like all human institutions, but it offers a useful framework for understanding and improving our work. Indeed, it can provide a way to help us define our identities and goals.
Understanding DR systems necessarily requires understanding sub-systems, i.e., how particular processes work and even elements of those processes. Returning to the familiar fable of the blind folks and the elephant, we need some experts (like ear, trunk, and tusk specialists) to focus on specific parts of the anatomy while recognizing that these organs work properly only if they are integrally connected with the entire beast. Thus, while we need specialists to deal with particular problems, the overall goal is the health of the entire organism.
So trials, judicial education, and many other aspects of our legal system are like elephants’ trunks and tusks – important elements of the subject. In this case, the subject is – or should be, in my view – the dispute resolution system overall and our goal should be to make it work as well as possible.
What do you think? You never write. You never call.