Richard Birke, a law professor at Willamette University, gave a talk at the ABA Dispute Resolution conference expressing frustration with the term “Alternative Dispute Resolution.” The term is too limiting to describe the many ways that the skills of negotiation, mediation, and other forms of conflict resolution can be applied in practice. It’s also inaccurate, since “alternative” means of resolving disputes probably comprise the vast majority of resolutions.
In the status hierarchy of law schools, the field of ADR has always been treated as something of a stepchild, not considered as prestigious as traditional subjects like Constitutional Law or Contracts. It’s not clear that the study of conflict resolution even belongs in law school, since law comprises only a small part of the syllabus. Yet Birke is finding his colleagues in more traditional legal subjects, especially the more esoteric ones like Labor Law, wondering if any of their students will ever use the information they are imparting. Meanwhile teachers of conflict resolution, which embraces concepts from economics, psychology, and a myriad of other disciplines, and not much “law” at all, can see immediately the usefulness of the skills they are teaching. We all benefit from learning how to negotiate and how to solve problems.
Not only are the skills being taught in conflict resolution studies useful to pretty much anyone who has to interact with other human beings, those skills find practical application in a number of new career paths for attorneys (and also non-attorneys). While graduates of mediation training often have a hard time finding work as traditional “mediators,” they can apply their skills to solve problems for clients in ways that traditional lawyers may be ill-equipped to handle. ADR specialists can help clients re-structure their businesses, deal with succession issues, avoid litigation, assist with contract negotiations, or any number of other conflict management and resolution scenarios.
Birke thinks we need to come up with a new name for this field, one that better expresses the wider array of applications of its teachings. His suggestion is “Applied Decision Theory,” a name that might introduce its own set of confusions; but at least avoids some of the negative connotations of “Alternative Dispute Resolution.” He recognizes the challenges of describing the field of study encompassed by this new term. And he also acknowledged the large problem of how to market this specialty, both to prospective students, and to potential clients who are accustomed to thinking that if they have a problem with somebody, they should probably call a lawyer to solve it, expecting that lawyer to employ an adversarial approach. It will probably take a while before it occurs to people experiencing injury or dealing with other forms of conflict, that they should call their local applied decision theorist.
“Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often the real loser—in fees, and expenses, and waste of time.”...By Chris Kane