Debating The Meaning Of The ‘A’ In ADR

Our local Whole Foods Market carries a brand of high-end chocolate bars in assorted flavors which boast a variety of exotic ingredients, including — I am not making this up — smoked applewood bacon. In so many ways, that’s just wrong.

Let me set the record straight. I like chocolate. And I love bacon. In fact, a lot (which doomed my brief flirtation with vegetarianism).

Bacon pairs well with lots of food. Chocolate doesn’t happen to be one of them. See, no matter how good something may be, it’s not a perfect match for everything.

Despite the fact that I’m a professional mediator, it’s also one of my concerns about alternative dispute resolution. Like bacon with chocolate, it’s not always the right choice. But some in my field are convinced otherwise.

While attending an ADR conference a few years ago, I struck up a conversation with a fellow mediator. He chastened me when I used the phrase “alternative dispute resolution”. “No,” he corrected me, plainly insulted, “it’s not just an alternative, it’s appropriate dispute resolution — not like litigation, which is never appropriate, as far as I’m concerned. I want people to think appropriate instead of alternative when they hear ‘ADR’.”

Unfortunately the workshop I was leading was about to start, so I left without a chance to tell him what I thought. That was probably a good thing, since I was about to offer an impolitic response. What arrogance, I thought to myself, how can anyone insist on the absolute appropriateness of private resolution for all disputes? It’s like treating every disease with antibiotics regardless of the cause or the symptoms.

That mediator is not alone in thinking this way. Some mediators, I know, think that “alternative” marks ADR as inferior or third-rate — litigation’s red-headed stepchild. Google the phrase “appropriate dispute resolution”, and it’ll return over 20,000 hits. Frequent use has begun to legitimize it. This is no cause for rejoicing — not when you stop to read the legitimate criticisms leveled against ADR and overzealous ADR practitioners, or consider the reminders of the value and role of litigation. It becomes harder and harder to insist that the “A” in ADR should mean “appropriate”.

Over the years I’ve thought often about that conversation. I thought of it when I read Victoria Pynchon’s article, “Paternalism, Self-Determination and the Rule of Law“, which recounted an incident at the recent Mediators Without Borders conference:

[S]omeone suggested from the podium that we should include mediation and arbitration agreements in our own contracts with our own clients.

I raised my hand.

“Why,” I asked, “do you want to restrict our clients’ access to the justice system?” once again demonstrating a fractious lack of diplomacy that makes some people wonder how I could possibly be an effective mediator.

It wasn’t a well-placed question but it is of a type I often find myself more or less compelled to shoe-horn into any conversation that assumes mediation is best for other people.

It’s time at last to reclaim or insist upon “alternative” as the “A” in “ADR”. Among other things, “alternative” means “choice”, “one of several possibilities”. This notion of choice comports with ADR’s history with its roots in legal reform and other movements which sought to increase, not decrease, the choices available on the road to justice. Pioneer Frank Sander, while envisioning the multi-door courthouse with its many entrances leading disputants to the process fitting best their dispute, never intended that the door to litigation be closed. In delivering his 1976 paper, “The Pound Conference: Perspectives on Justice in the Future”, he reminded his audience of the “need to retain the courts as the ultimate agency capable of effectively protecting the rights of the disadvantaged”.

The lack of choice which ADR’s modern offspring have produced runs contrary to the promise of choice that once distinguished ADR. Let’s put the “alternative” back in ADR and let people choose for themselves what’s appropriate — whether to arbitrate or mediate — or, yes, to litigate.

                       

Diane J. Levin

Diane Levin, J.D., is a mediator, dispute resolution trainer, negotiation coach, writer, and lawyer based in Marblehead, Massachusetts, who has instructed people from around the world in the art of talking it out. Since 1995 she has helped clients resolve disputes involving tort, employment, business, estate, family, and real property… MORE >