Alternative Dispute Resolution: Alternative to What?
Conflict inevitably results from human interaction (Lederach, 1995). With over 300,000,000 American citizens (U.S. Census Bureau, 2008), huge potential for conflict exists in the United States, and often the disputants feel a need for outside intervention. Ultimately, if they need an externally-structured dispute resolution process, most Americans turn to the legal system. While they are uncomfortable with, unfamiliar with, and somewhat frightened of the legal system, most citizens turn to it because they know of no alternative that provides unbiased third-party intervention. Yet, many people, both attorneys and non-attorneys, recognize that the adversarial approach of the legal system does not most effectively, efficiently or satisfactorily resolve some types of disputes.
Many disputes lend themselves to resolution through non-adversarial approaches, such as alternative dispute resolution (ADR). Beginning in the 1960’s, some courts introduced ADR programs to resolve some cases, which, although already in the legal system, could be better, or more quickly, or at least less expensively resolved through non-adversarial methods. Now the courts require many cases to go through some sort of ADR process before judicial resolution (Clare, 2003). Non-attorney professional conflict resolvers experience much frustration (Kleiman, 2006; Goldberg, 1997) because the professionals applying ADR methods to these court-annexed cases are almost all attorneys, who, although they may also have received some training in ADR, are fundamentally programmed through their education and training to analyze cases based on the adversarial approach of the legal system. Non-attorney professional dispute resolvers, attracted to and trained in non-adversarial ADR methods, find themselves largely excluded from applying their specialized skills to court-annexed cases.
Conflict then arises between the attorney and the non-attorney dispute resolvers. They scrap over turf as if disputes were in short supply. The non-attorney dispute resolvers object to attorney control over court-annexed ADR processes, arguing that the non-attorney professionals are better qualified, or at least as qualified, to apply ADR methods (sometimes deriding the attorneys’ methods in the process). The more they do so, the more attorneys assert their territorial dominion. Rather than engaging in conflict with attorneys over who is better qualified to apply ADR methods to court-annexed cases, professional non-attorney conflict resolvers should instead endeavor to resolve disputes outside the legal system.
Ideally, most ADR would reside outside the legal system, not as an annex to it. To maximize the use of and the benefit from ADR, the cultural view of dispute resolution in America needs to change. ADR needs to be an alternative to the legal system, not just an alternative to trials in court. Citizens and businesses need to be aware of, become comfortable with, and have confidence in those alternatives. While some attorneys may support and even participate in efforts to accomplish this change, the impetus needs to come from people working outside the legal system.
Conflict Resolution In the Legal System
The legal system provides a necessary structure for the resolution of many disputes. Some disputants will not reach agreement through collaborative processes. Some disputes need the coercive power of the state to enforce the resolution, regardless of how that resolution is achieved. Perhaps more importantly, many people want an advocate when they become involved in a dispute. Particularly if the dispute involves perceived legal rights, legal wrongdoing, or threat of legal action against them, people or businesses desire advice on how to navigate the legalities of the situation.
Attorneys are trained in the law, trained to analyze cases according to the legal ramifications and to be advocates. A good attorney will use her knowledge of the law and the intricacies of the legal system to advocate for her client. Many attorneys, even litigators, spend much of their time advising clients how to avoid lawsuits or prosecution. A good attorney works to resolve, or better yet, to prevent problems to help her client avoid the court system. Clients ask attorneys for advice on how to achieve their goals without becoming vulnerable to lawsuit or prosecution. In short, attorneys work regularly to prevent or resolve problems before they enter the legal system. But attorneys are also highly trained and programmed in the adversarial approach. They should be. If a dispute does reach court, the process is adversarial. In court, one side is pitted against the other. One side will win and one side will lose. In court, each side should have an advocate well-versed in the relevant law and with the skills to persuade a judge or jury of their client’s position.
Conflict Resolution Outside the Legal System
Professional conflict resolvers such as mediators, facilitators, or ombudsmen do not advocate for or advise disputants. They are trained to help disputants resolve their own disputes through collaborative, non-adversarial ADR methods. By training and experience, they have learned that many disputes come to a more satisfactory, long-term resolution through discussion and negotiation. When people work together to decide the best solution for themselves, they are more likely to work out an agreement that satisfies most of their needs, even if they cannot achieve all that they desire. If people have played a major role in shaping the resolution of a dispute, they are more likely to make the agreement work. They are less likely to resent the solution and less likely to sabotage the agreement (Mayer, 2000). When disputants each tell their story in a non-adversarial setting, they can better understand each other’s perspective and needs. If they can then negotiate an agreement that reflects that understanding and that satisfactorily meets those needs, negotiation yields a much more satisfactory, sustainable relationship than if a third party decides that one side wins and one loses. A trained mediator, facilitator, or ombudsman can help people communicate and process their own and the other person’s perspectives and needs. A trained ADR practitioner can help disputants find common ground from which to work a solution.
What are labeled as “alternative” methods of conflict resolution have been practiced in some form in nearly all societies throughout history, usually by church leaders, community leaders, or elders. But in this highly mobile modern American society, those structures are no longer available to many people (Mayer, 2000). This leaves the legal system as the only formal system for dispute resolution with which most people are familiar.
Developing a System of ADR Outside the Legal System
The legal system is adversarial and expensive. Most people feel the need to hire an attorney to serve as a guide and interpreter of that system. Attorneys are expensive. Many people fear that they cannot afford an attorney and are left with no intervention to aid in resolving their disputes. Others let their conflicts escalate to a highly fractious state, from which relationships will never recover, before entering the system. Furthermore, in an adversarial system in which a judge or a jury decides who wins and who loses, it is unlikely that all parties will feel that their interests or needs have been satisfied. In fact, sometimes, no party’s interests or needs will be satisfied.
Many disputants can better resolve conflicts among themselves with participation of a neutral third party trained in conflict resolution. ADR can be better applied if a dispute has not already been escalated by an adversarial approach. Neutral third parties trained in ADR exist and want to be reasonably compensated to help people mutually and satisfactorily resolve their disputes without resorting to the legal system. But disputants need to know that this option exists.
ADR specialists need to educate the public. ADR specialists need to make direct contact with potential consumers of their services. They should not wait to be handed work annexed by the court system. They should study which types of cases going into the legal system are most often resolved by ADR. They should contact those consumers of dispute resolution services and promote the benefits (lower cost, less escalation of conflict and attendant anguish, anxiety, and destruction of relationship, and more private resolution, for example) of choosing ADR before entering the legal system. They should advocate to potential consumers of ADR that they include in contracts a requirement that ADR be engaged before resorting to the legal system when disputes arise. No rights are lost because the legal system will still be there if ADR is unsuccessful.
ADR specialists need to advertise. ADR organizations should promote the process of negotiated resolution of problems through public service advertisements. ADR practitioners need to increase the public’s knowledge of ADR services. Professionals should present to organizations, such as business or industry affiliate groups, the concept of ADR as an alternative dispute resolution system to be used before, or instead of, resorting to the legal system.
If television showed as many advertisements for mediators to resolve disputes as advertisements for attorneys, some people might call a mediator instead of an attorney when a dispute arises. Those advertisements need to specify particular types of disputes that could be addressed through mediation, just as attorney’s advertisements do. Some ADR specialists may not be comfortable with the idea of advertising, but one reason people think to call an attorney whenever something bad happens to them is because many lawyers advertise. The advertising creates a mindset in the public. ADR practitioners could do the same. For example, an ad might say, “Is your staff spending more time squabbling than working? Call Self-help Mediation Services. As a neutral third party trained to facilitate discussion of conflicts, we’ll help you negotiate. You have the power to resolve your problems.” Or one might say, “Are you at your wit’s end with your teenager? Tired of fighting, but don’t know what else to do? Let a trained, neutral third party guide you through your own discussion process. Call Self-help Mediation, Inc. You have the power to resolve your problems.” Not only might this get a client or two, but perhaps more importantly, it introduces people to the idea of working through their problems with a neutral third party.
Lawyers should not fight ADR specialists over this. In fact they might engage ADR specialists’ services for their own organizational and professional disputes. Most Lawyers specialize in resolving disputes through the legal system. The approach to the promotion of services advocated here does not pit ADR specialists against the legal system. It promotes two systems’ working in parallel, as they should, for a richer, more peaceful, less contentious society.
Alternative dispute resolution offers society a much-needed alternative to the adversarial system of the courts. It has been applied with considerable success to cases brought in the court system, but it could more satisfactorily resolve more disputes if applied before a dispute enters the legal system. Even after a dispute enters the legal system, ADR specialists of all backgrounds, including non-attorneys, have much to offer. But ADR specialists should not wait for attorneys to annex their work to non-attorneys or be frustrated if attorneys do not give them their work. ADR practitioners should promote their own services, and build their own clientele for ADR. ADR can be better practiced outside the legal system before the adversarial approach escalates conflicts. It can serve more people, more satisfactorily. The promotion of ADR outside the legal system can change society’s view of dispute resolution. People can learn and, once the possibility has been demonstrated, want to learn to resolve their own disputes. ADR specialists need not fight with attorneys in the doorway of the multi-door courthouse. They need to build a complex of dispute resolution buildings, more accessible to the people, outside the courthouse.
Clare, J. R., Roundtree, L. P., & Manley (Eds.), E. P. (2003). Alternative dispute resolution in north carolina: A new civil procedure. , NC: North Carolina Bar Foundation and the North Caroli.
Goldberg, S. H. (1997). ‘Wait a minute. This is where I came in.’ A trial lawyer’s search for alternative dispute [Electronic version]. Brigham Young University Law Review, 1997(3), 653-686. from Academic Search Premier (9710313124).
Kleiman, M. (2006, July). A perspective on the growth and evolution of the field of mediation. Retrieved November 3, 2007, from http://mediate.com//articles/kleimanM1.cfm
Lederach, J. P. (1995). Preparing for peace: Conflict transformation across cultures. Syracuse: Syracuse University Press.
Mayer, B. (2000). The dynamics of conflict resolution: A practitioner’s guide (). San Francisco: Jossey-Bass.
United States Census Bureau. (2007). Retrieved May 26, 2008, from http://www.census.gov/
IndisputablyI just read this blog post by John Sturrock, a preeminent Scottish mediator who has long worked to mediate political conflicts involving Scotland and the United Kingdom. He was active...By John Lande