Law students are probably familiar with a diagram like the one above. It arranges different ways of resolving disputes according to how much say parties have in the outcome. Much as Felstiner and colleagues (1) famously described disputes being transformed into court cases through ‘naming, blaming and claiming,’ this graphic illustrates a parallel transformation in their resolution. At one end parties control process and outcome (informal discussion). Further along they delegate process but retain control of the outcome (formal negotiation and mediation). At the far end they hand over both process and outcome to another (arbitration and litigation). Vigilant readers will notice the thick line between mediation and arbitration.
In this blog I draw attention to the hard logical distinction between consensual and adjudicative processes, glossed over by the vague and unhelpful term alternative dispute resolution. I then describe some of the mischief caused by overlooking the difference between making a decision and having it made for you.
ADR: A Weasel Word
Frank Sander is credited with coining the term ‘alternative dispute resolution’ in his address to the ‘Pound Conference’ in 1976 (2). In fact his case for a shakeup of the American justice system used the term ‘alternative dispute resolution mechanisms’ (3). Sander devised a similar diagram to mine (which I can’t reproduce for copyright reasons.) This places ‘adjudication’ to the left of a scale of ‘decreasing external involvement’ (4). Strikingly he employs a single term, adjudication, to describe both court AND arbitration (5), placing mediation, conciliation, negotiation and avoidance on the other side of his ‘line.’ Later in the piece he proposes a two stage process for a range of disputes, starting with a ‘mediational phase, and then, if necessary, … an adjudicative one’ (6).
No lack of conceptual clarity from Professor Sander, then. He seems to have understood that processes where a binding decision is made by a third party belong together, citing Fuller’s definition of adjudication as ‘a social process of decision which assures to the affected party a particular form of participation, that of presenting proofs and arguments for a decision in his favor.’ (7) Unfortunately his successors have been less clear. The acronym ADR, whether referring to alternative dispute resolution or its modern variant, appropriate dispute resolution, now draws the line in a different place. On one side are the courts (decidedly not alternative). On the other, modern commentators lump together arbitration, mediation, negotiation and a rag tag of assorted processes, including early neutral evaluation, med-arb, arb-med and even tribunals. ‘Alternative’ now appears to include adjudication in the form of arbitration.
The Mischief
Why does this matter? We can’t expect the public to care if members of one rather obscure profession object to being confused with another. This lack of clarity, however, affects others. When a court or lawyer suggests ADR, what do consumers think they are getting? Will they be ‘decision makers’ or ‘decision recipients’ (8)? As things stand it could mean either.
This assumes even greater significance when ADR becomes mandatory. It is one thing to require, or encourage, people to take part in a process that gives them a veto over the outcome (as in court-ordered mediation). It is quite another to compel them to submit to the binding decision of an individual who is not a state-appointed judge (as in arbitration). There is no veto, and often no appeal.
In the US, fierce political debate about mandatory arbitration clauses in employment contracts has culminated in a legislative attempt to outlaw them: the Enforced Arbitration Injustice Repeal Act. While it may not reach the statute books undiluted (9) the outcry concerning this practice raises deeply uncomfortable issues for mediators. By sharing the umbrella term ADR, mediators foster an association in the mind of consumers with a practice many regard as oppressive, now dubbed by the American congress an ‘injustice.’
Justice
Controversy about the justice or injustice of processes like mediation and arbitration is not new. Concerns have been raised about mediation’s capacity to protect vulnerable individuals, its privacy, its informality and its effect on the wider justice system. I summarise forty years of critical writing on mediation in a recent article, What Do Lay People Know About Justice? (10)
I am NOT making a simple equation: mediation = good, arbitration = bad. Some of the critiques just mentioned apply to mediation but not to arbitration. And if two businesses in dispute choose to appoint someone with relevant skills and experience to render a binding decision, why should they not? But I repeat my call for clarity. By forgetting the thick line between mediation and arbitration we lump profoundly dissimilar processes together. This enables those with vested interests, or who are simply resistant to change, to write us all off. It is time to drop the term ADR, coined in the middle of the last century, and say what we mean. If we think it is a good idea to refer people to arbitration, then say so. If courts deem mediation appropriate, then the legislation and rules should use the correct word.
UK developments
Sadly my own jurisdiction of Scotland provides a recent example of the confusion. As I’ve mentioned before on this blog, its 2016 Simple Procedure Rules contain repeated references to ADR. I speculated whether the courts would actually use the rules to refer more cases to mediation ‘or any other form of ADR’ (like most mediators I had fallen into the habit of using a formula like this as a polite nod to arbitrators). In reality they have, now ‘encouraging’ hundreds of small claimants annually to resolve their disputes via mediation. Sheriffs (judges) have learned to use ADR as a synonym for mediation. There may be examples of referral to arbitration, but I’m unaware of them. And here’s the puzzle: the rules say ‘ADR’ while those following them think ‘mediation.’
A more hopeful instance of clarity has just been published in England and Wales, nicely summarised by Alan Limbury in this blog. Admittedly the title of the Civil Justice Council’s 2021 report ‘Compulsory ADR‘ is not promising. I expected the usual fudge. Then I was cheered to read the following footnote to its definition of ADR: ‘This definition excludes arbitration even though arbitration is sometimes listed as a form of ADR. Arbitration is an adjudicatory process in its own right and represents a permanent diversion from the court process. It culminates in an award from which there is typically only a very limited right of appeal. Arbitration therefore inevitably raises different issues in relation to constitutionality’ (11). Finally.
A great deal of the report is devoted to unpicking the consequences of a puzzling 2004 Court of Appeal decision (12). But its conclusion is that ADR (for which read consensual processes, particularly mediation) is no longer separate from or even alternative to the courts and can reasonably be encouraged through sanctions. While I’d have preferred them to ditch the term ADR altogether the authors make laudable efforts to confine themselves to processes where parties remain decision makers, distinguishing arbitration as a ‘“cul de sac” which removes disputes from the court process entirely’ (13).
Conclusion
It is time to remind ourselves of the thick line between mediation and arbitration. This is not simply an intellectual game for legal scholars. For many years those who work in dispute resolution, myself included, have persisted in employing ADR as a synonym for mediation, or whatever process they prefer. This is confusing for consumers and a disservice to policymakers. Let us say what we mean.
To take one final example, Scotland already has an Arbitration Act and many of us believe it needs a Mediation Act. Whatever we do, let it not be an ADR Act.
References
(1) Felstiner. W.L.F., Abel. R.L. and Sarat. A., 1981. The emergence and transformation of disputes: naming, blaming, claiming… Law and Society Review 15 (4) 631–654.
(2) The full title was The National Conference on the Causes of Popular Dissatisfaction with the Administration of Justice; Sander. F.E.A., 1976. Pound Conference addresses. Federal Rules Decisions 79: 111-133.
(3) Ibid. 113.
(4) Ibid. 114.
(5) He also includes ‘Administrative Process’ which seems to refer to the US’s range of administrative agencies for large volume, repetitive cases.
(6) Sander 1976, 127
(7) Ibid. 114, citing L. Fuller, 1963. Collective Bargaining and the Arbitrator Wisconsin Law Review 1, 19.
(8) Sivasubramanium. D. and Heuer. L., 2007. Decision makers and decision recipients: understanding disparities in the meaning of fairness. Court Review 44: 62–70.
(9) See Turning of the Tide: Could Congress Ban Mandatory Employment Arbitration?
(10) Irvine, C. (2020) What Do Lay People Know About Justice? An Empirical Enquiry International Journal of Law in Context, 16 (20) 146-164.
(11) Fn 3 on p. 8.
(12) Halsey v Milton Keynes General NHS Trust [2004] 1 WLR 3002
(13) Civil Justice Council, 2021, p. 11
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Unfortunately, the image is cut off at the top and bottom, so we cannot see what precedes “Resolution?” Presumably it is not “Alternative Dispute”, since the chart includes litigation. Nonetheless, the existing nomenclature has done a disservice to many, mostly mediation, as the toddler in the field in many jurisdictions. I am not in favor of abandoning the term ADR. I describe myself as an ADR practitioner because I practice all forms on the chart, except litigation. So it has some utility to some. But we must create some clarity in distinguishing the processes. Some have taken to the term “consensual dispute resolution” (“CDR”) as a way of drawing the distinction by the nomenclature itself. I am not sure the community is ready to replace ADR with CDR quite yet. It will take more education of consumers of the processes as well as practiioners. This article is a good step to begin that process.
Thanks Tom. The word at the top is just ‘Resolution’ – I couldn’t work out how to crop the image to include the full letters. I appreciate some people work on both sides of the line, but I’ll stick by my call for clarity. I’m sure when you’re an arbitrator you arbitrate and when you’re a mediator you mediate.
An excellent article Charlie. We have the same issues in Australia. Now the term dispute resolution is often used instead of ADR. Recently there was a move to change the name of the National Mediation Conference to the National Dispute Resolution which was fortunately defeated. Just when mediation is beginning to be recognised broadly it is absorbed into what?
Thanks Margaret. I don’t think DR solves the problem, but I’d be interested to hear the thinking behind it.
I agree Charlie.
Although the mediation/Arbitration debate appears to be one of those frustrating definitional debates there is a serious underlying principle we are traversing.
I take the view that litigation, arbitration, expert determination, dispute boards, adjudication, referee, mini-trial and other determinative processes are all the same horse but with different jockeys. The ultimate decision is contracted out to an intermediary.
The alternative is to make the decision in-house so to speak. Whether this be mediation or in the case of major projects, Project Alliancing.
Project Alliances allow all parties an equal say in any decisions and all issues must be resolved without recourse to litigation. All disputes are decided by an Alliance Board made up of one representative from the owner and each non-owner participant. All decisions must be made unanimously with no abstentions. It is a holistic approach which gives it amazing flexibility in times of disagreement.
Everyone in a Project Alliance is equally responsible for the problems and the solutions. It has a proven record of better than ‘business as usual’ outcomes. There is no need for dispute boards, dispute resolution clauses or referees as is self-directing.
Both mediation and Project Alliances fit with the whole movement towards disintermediation particularly with the removal of intermediaries in economics, supply chains, management, field ethnography and, dare I say, the law and politics.
In addition, there is a whole rewilding movement in nature, economics and society in general. Mediation and Project Alliances and other nondeterministic approaches to conflict are a way for the law to re-wild itself in a post-ordered industrial legal and commercial world that has disappeared. The world is now a more fluid and interconnected place. A lot wilder.
Litigation and arbitration have lost commercial value not because mediation is an attractive product that everyone is rushing to buy nor is it because the judiciary and the legal profession have suddenly become incompetent. It is because the world has changed. Generals generally tend to fight the last war. The legal profession needs to be careful that it is not doing the same.
Thanks Greg. I’ve not come across Project Alliances and must investigate. I very much agree with your point about societal change and the disruption of hierarchies. Many mediation pioneers were keen on that radical potential – but it’s harder to maintain as the process becomes more mainstream.
Hi Charlie
This is a link to a paper I published in SSRN a few years ago.
I need to update it.
Best wishes Greg https://gregrooney.com.au/wp-content/uploads/2016/04/PROJECT-ALLIANCING-%E2%80%93-2013-THE-PROCESS-ARCHITECTURE-OF-A-RELATIONSHIP-BASED-PROJECT-DELIVERY-SYSTEM-FOR-COMPLEX-INFRASTRUCTURE-PROJECTS.pdf
Hi Charlie
Project Alliancing evolved out of the Andrew Project run by BP in the North Sea. So has a Scottish pedigree
See this link to a paper on Project Alliancing I published a few years ago on SSRN. I need to update it.
see
https://gregrooney.com.au/wp-content/uploads/2016/04/PROJECT-ALLIANCING-%E2%80%93-2013-THE-PROCESS-ARCHITECTURE-OF-A-RELATIONSHIP-BASED-PROJECT-DELIVERY-SYSTEM-FOR-COMPLEX-INFRASTRUCTURE-PROJECTS.pdf
Good article Charlie. It is hard to believe that 20 years after people started to question the expression ADR and offered Appropriate/Effective Dispute Resolution or just Dispute Resolution that we are still having this debate. This has a Groundhog Day feel to it!
By the way, I too am intrigued by Greg’s Project Alliances and very much like your comparison with rewilding generally.
Thanks John. I know this is a theme you feel strongly about. I’m trying to purge the term ADR from my vocabulary!
Charlie, you’ve written a very interesting article! Alternative Dispute Resolution (ADR) refers to any technique for resolving conflicts other than via litigation. Arbitration and mediation, in my perspective, are two different types of ADR, but not the only two. The goal of mediation or arbitration, is the same, to come to a conflict resolution.