The Transition of ADR to ADM

This article has been reproduced with permission of
the
Bond University Dispute Resolution Newsletter September 1999, Vol 2.

Nomenclature in the dispute resolution world has gone through many transitions. There are at least four meanings of the term “ADR.” The Bond Dsipute Resolution News examines each in turn, before considering ADM and its possible meanings.

The Four Versions of “ADR”


1. ADR – “Alternative” Dispute Resolution is now considered to be politically and sociologically incorrect in some cultures. ‘Alternative’ reflects egocentric description description of the world by a few trial lawyers. Worldwide statistics show that over 90% (closer to 95%) of the conflicts which enter lawyers’ offices; or court files settle by agreement or abandonment. In the Australian Family Law Act, negotiation, counselling and mediation are labelled “PDR” (Primary Dispute Resolution). By definitional implication and statistics, litigation is now “alternative dispute resolution”.

2. ADR – “Additional” Dispute Resolution was an early transition to placate defensive lawyers who were concerned that litigation was being linguistically downgraded. Everyone acknowledges that there are statistically few conflicts which definitely need a judicial decision (like brain surgery). However, the word “additional” is inaccurate if statistics continue to show that over 95% of conflicts are “resolved” by negotiation, abandonment, counselling or some form of mediation (as compared to by judicial decision)

3. ADR – “Appropriate” Dispute Resolution is a helpful reworking of the letter “A” to bring to the forefront the vital diagnostic question “which intervention is appropriate for which conflicts at what time?”

4. ADR – “Assisted” Dispute Resolution as a description elevates the area of study and practice to embrace a wide range of professions and working groups. Potentially, this label may reduce some of the competitive turf grabbing that has occurred between traditional and newer work groups such as therapists, lawyers, mediators, financial consultants, and change-managers. The generic concept of a “skilled helper” re-emerges. It also provides a helpful reminder of the continuum of differences between self help and the gradual intervention of a variety of skilled helpers.

ADM – “A…….. Dispute Management”
As the dispute resolution movement has matured through conflict, institutionalisation, diversity, practice and theory development,

1. There has been an encouraging recognition of the inter-disciplinary nature of the study of conflict. The vast literature on conflict and change in management and psychology schools has encouraged replacement of the word “resolution” with ubiquitous “management”.

2. Many practitioners have reported some unease with the triumphal word “resolution” (like medical practitioners overselling “health”). “Resolution” implies some degree of harmony whereas many personal, organisational and international conflicts are redirected into manageable levels, rather than closed, ended or “resolved”.
Thus the words, “alternative”, “additional”, “appropriate” or “assisted” can be inserted in front of “dispute management” (ADM).

ADM – “A……….Decision-Making”
A further helpful linguistic alternative has focussed on the letters “DM” to stand for “decision-making”. Again “ADM” can be “assisted” decision making. The latter two are particularly useful conceptual developments.
The concept of “decision-making” enables –

1) The rich literature of psychology and management to enter mediation and lawyering cultures.

2) Mediation and lawyering to continue their search (often reluctant) for theories behind practices. (See the writing of Chris Honeyman)

3) Demystification of many of the tasks of skilled helpers.
However, this constant widening of necessary “basic” knowledge and skills of mediators and lawyers provides serious challenges both to traditional educational curricula and to slick training courses.

For an excellent introduction to decision making theory and process, I recommend the book J S Hammond, R L Keeney, H Raiffa, Smart Choices – A Practical Guide to Making Better Decisions (Boston: Harvard Business School, 1999) – reviewed at the beginning of this newsletter.

                       

John Wade

John Wade is an Emeritus Professor of Law at Bond University and was a practicing lawyer in Australia until 2012. John is a nationally and internationally acclaimed expert in dispute resolution, legal education and family law. For the last 40 years he has taught at two Australian, three Canadian, one… MORE >