Historically, the three main dispute resolution methods used in the United States have been violence, avoidance, and litigation. In the early 1900s, labor-management disputes began to be resolved through mediation and arbitration, and a few decades later many states enacted statutes requiring teachers, police and other public service personnel to mediate and arbitrate their conflicts. Today, there are a variety of additional processes that can be used to foster the resolution of disputes. Many of these processes began gaining popularity in the early 1970s as a result of frustration with the varied human and financial costs associated with litigation. These processes were described as alternatives to litigation — hence the term Alternative Dispute Resolution.
Alternative Dispute Resolution or ADR is, in effect, a continuum of dispute resolution processes used to resolve conflicts in an assortment of contexts. There are many ADR processes on the continuum, all of which are valuable dispute resolution mechanisms. The processes range from cooperative mechanisms where the disputants work together to resolve their own issues to adversarial mechanisms in which disputants argue their positions to a third party who determines the outcome by validating the position of the prevailing party. On the cooperative side of the continuum, the interventions are such that the interveners attempt to create an informal/flexible environment in which the parties are involved in process development and collaboratively determine the agenda, the standard of fairness and the outcome of the dispute. The energies of those involved in interventions on the cooperative side of the continuum are directed at increasing the likelihood of integrative outcomes that make both sides better off than they would be absent an agreement. On the competitive end of the continuum, the interventions, for the most part, have a more formal, linear approach where the interveners decide the process used, the agenda, the applicable fairness principles and the outcome of the dispute. The energies of those involved on the competitive end of the continuum are directed at determining which party will prevail over the other and thereby increase the likelihood of competitive behavior and outcomes.
Each process on the continuum has advantages and disadvantages. In certain situations, one process may be more appropriate than another in resolving a dispute (e.g., to maintain a relationship, to establish a precedent, to save face, to provide political cover or to be vindicated).
Blurring the Lines
Before ADR came to be popular thirty years ago, there were not as many alternative dispute resolution options as there are today. One can argue, during that time period, the boundaries were clearer between the various ADR processes. As ADR gained popularity in the 80's, the functions endemic to the traditional litigation process began to permeate the boundaries of various other processes and, for some, initiated the unfolding of additional adversarial battlegrounds within the continuum. Some attributed the seepage to the courts’ adoption of ADR processes which brought large numbers of lawyers and other advocates with adversarial skills and litigation expertise into the ADR field. Although the effusion may have been inadvertent, the resulting spillover continued and has not gone unrecognized by clients and observers of arbitration and mediation processes. Both processes have been criticized because the frustration with litigation that led to the creation of ADR (increased costs, time, formalities, advocacy, external involvement and control, discovery and other procedural rules) has become part of the arbitration and mediation processes. This phenomenon has contributed to a blurring of functions within some dispute resolution processes and has precluded the public from having a deeper understanding of the distinctions between the various dispute resolution processes.
Notwithstanding the accretion of functions across the ADR continuum, some parties favor the adversarial characteristics that have been interspersed throughout the continuum. Other parties value the processes on the continuum without the additional adversarial functions. In practice, all of the existing ADR processes on the continuum, regardless of their characteristics, are structured to resolve disputes and, pursuant to the principle of self-determination, all of the processes should be available for disputing parties to consider. However, the new or modified processes should be identified, renamed (e.g., judicial mediation) and defined.
Failure to Educate
The disputing parties must understand the continuum in order to make informed choices when selecting the appropriate ADR process to resolve their disputes. The failure of the ADR field to educate the public about the distinctions within the ADR continuum has fostered confusion and the public’s misunderstanding of ADR. Uninformed disputants, who generally don’t have the time to investigate the ADR processes, have difficulty understanding the distinctions between them. For example, a business owner who was a fellow airplane passenger shared a seat next to the author. The business owner commented that he liked mediation because the mediator could give a decision more quickly and with less cost than going to court. To remedy this situation, in 2009, the American Bar Association and the Association for Conflict Resolution made an unsuccessful attempt to explore how to educate the public about the dispute resolution field and its ADR processes.
We know from the Model Standards of Conduct for Mediators that mediators should engage in “outreach and education efforts to assist the public in developing an improved understanding of, and appreciation for, mediation.” Perhaps the creation of an ADR process guide may help the public better understand mediation and the other ADR processes. This document could include: 1) a detailed explanation of the core tenets of the continuum (some of which are noted above), 2) the concept of linkages, described by Professor Morton Deutsch as the perspectives of the parties about the dispute and their actions in attempting to resolve the dispute, and 3) the ADR tools available to manage the dispute. Such a guide would clarify the disputing parties’ expectations and help them to make informed choices when selecting a process and an individual to help resolve disputes.
Notwithstanding the need for a guide to understand ADR processes, the success of the field is influenced by the internal dissonance within the ADR ranks. The entrance of neutrals into the field from different portals, in different time periods, with different training and areas of expertise, fosters different views and understandings of ADR based on the differing perspectives, values and approaches to the different processes. The dirty little secret within the ADR field is that there is passionate disagreement and, at times, incivility within the ADR ranks regarding how certain processes should be managed. These disagreements include, among other things, naming the goal of the process, which tools are appropriate for the process and who is qualified to manage the process. For instance, as the popularity of ADR expanded, the mediation field began to specialize according to the styles and techniques across specific sub-groups (e.g., certification according to subject matter and certification according to mediation process). This specialization has created silos within the field and caused dissention between different specialized sub-groups. The mediators within a sub-group believe their techniques and mediation styles are the only way or the best way to practice mediation. This has fostered friction between and within some of the sub-groups.
A respondent in the 2011 Association for Conflict Resolution’s Diversity of Practice Report states “there is an unfortunate tendency within the dispute resolution field for practitioners of one form or style of mediation to criticize practitioners of other styles.” Another quote from one of the respondents in the Report states “if you don’t agree with me you … are not a competent mediator.” This friction has affected public understanding, party expectations, and the overall quality of the processes. Interestingly, some practitioners are unaware of the issues noted herein because of their isolation in silos and sub-groups.
Advancing the Field
The importance of preserving and clearly identifying the distinctly appropriate processes that the public can use to resolve difficult matters cannot be overestimated. It is generally recognized that the blurring of boundaries is, to some extent, a historical inevitability. The best ideas have always been redacted, homogenized, and diluted to fit current styles and markets. However, the core tenets of the ADR continuum, Deutsch’s linkages and the appropriate ADR process tools, reveal important distinctions between cooperative and competitive actions that need to be preserved and developed for future generations.
If the ADR field is going to flourish, internal disagreements about process and process management, among other things, will have to be resolved. The ACR Diversity of Practice Report found a need for more dialogue among the different groups of ADR practitioners that utilize the same processes with different styles, viewpoints and process management.
It would be a loss to the profession and to the momentum many of us have worked so hard to create over the last 35 years ifADR practitioners fail to come together and do for themselves what they do for others. As we know from our practices, dialogue can produce solutions that could enhance the field and benefit everyone involved — the practitioners, the parties, the representatives and the public.
A more comprehensive discussion and the references supporting this article can be found in:
Stephen K. Erickson and Marvin E. Johnson, “ADR Techniques and Procedures Flowing Through Porous Boundaries: Flooding the ADR Landscape and Confusing the Public,” Practical Dispute Resolution, Volume 5, No. 1, January 27, 2012.
Howard Gadlin and Marvin Johnson, “A Small Step Toward a Tough Conversation: A Discussion Piece by the Association for Conflict Resolution’s (ACR) Diversity of Practice Initiative,” Practical Dispute Resolution, Volume 5, No. 2 (2014).
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