What is Alternative Dispute Resolution?
“Alternative dispute resolution” (ADR) is a term generally used to refer to informal dispute resolution processes in which the parties meet with a professional third party who helps them resolve their dispute in a way that is less formal and often more consensual than is done in the courts. While the most common forms of ADR are mediation and arbitration, there are many other forms: judicial settlement conferences, fact-finding, ombudsmen, special masters, etc. Though often voluntary, ADR is sometimes mandated by the courts, which require that disputants try mediation before they take their case to court.
Brief History of ADR
Although mediation goes back hundreds of years, alternative dispute resolution has grown rapidly in the United States since the political and civil conflicts of the 1960s. The introduction of new laws protecting individual rights, as well as less tolerance for discrimination and injustice, led more people to file lawsuits in order to settle conflicts.1 For example, the Civil Rights Act of 1964 outlawed “discrimination in employment or public accommodations on the basis of race, sex, or national origin.”2 Laws such as this gave people new grounds for seeking compensation for ill treatment. At the same time, the women’s movement and the environmental movements were growing as well, leading to another host of court cases. The result of all these changes was a significant increase in the number of lawsuits being filed in U.S. courts. Eventually the system became overloaded with cases, resulting in long delays and sometimes procedural errors.3 Processes like mediation and arbitration soon became popular ways to deal with a variety of conflicts, because they helped relieve pressure on the overburdened court system.
Basic ADR Processes
Today, ADR is used to settle a variety of disputes in American institutions, including the family, churches, schools, the workplace, government agencies, and the courts.4
ADR is not widely used in cases of intractable conflict until those conflicts seem to become ready (some say “ripe”) for resolution. This sometimes happens when the conflict reaches a hurting stalemate — a situation where it becomes clear that neither side can win; yet, they are being substantially hurt by continuing the struggle.
Ripeness is crucial for ADR processes to work effectively, and ADR has been used in appropriate cases. For example:
• Arbitration and negotiation have become common ways to resolve difficult international business disputes;
• Mediation and arbitration are now commonly used to settle labor-management disputes that often used to seem like intractable situations (See the essay on formerly intractable conflicts.);
• International mediation has been used to resolve difficult international and ethnic conflicts, with varying degrees of success;
• Consensus building has become a popular process for dealing with public-policy disputes, especially intractable environmental disputes.
General Advantages and Disadvantages of ADR5
Most ADR processes are based on an integrative approach. They are more cooperative and less competitive than adversarial court-based methods like litigation. For this reason, ADR tends to generate less escalation and ill will between parties. In fact, participating in an ADR process will often ultimately improve, rather than worsen, the relationship between the disputing parties. This is a key advantage in situations where the parties must continue to interact after settlement is reached, such as in child custody or labor management cases.6
ADR does have many potential advantages, but there are also some possible drawbacks and criticisms of pursuing alternatives to court-based adjudication. Some critics have concerns about the legitimacy of ADR outcomes, charging that ADR provides “second-class justice.” It is argued that people who cannot afford to go to court are those most likely to use ADR procedures. As a result, these people are less likely to truly “win” a case because of the cooperative nature of ADR.7 Similarly, critics believe that ADR encourages compromise. Compromise can be a good way to settle some disputes, but it is not appropriate for others. In serious justice conflicts and cases of intolerable moral difference, compromise is simply not an option because the issues mean too much to the disputants. Another concern is that ADR settlements are private and are not in the public record or exposed to public scrutiny. This could be cause for concern in some cases. For example, using ADR to settle out of court could allow a company to resolve many instances of a defective product harming consumers, without the issue getting any public exposure. On the other hand, a court ruling could force the company to fix all problems associated with the bad product or even to remove it from the market.8