ADR and Culture

• Author: Andrew J. Pirie
• Profession: Faculty of Law. University of Victoria
• Pages: 282-306

282

CHAPTER 7

ADR AND CULTURE

A. INTRODUCTION

Placing ADR alongside culture can bring to mind the following remarks

on ADR and culture.

“The establishment of ADR processes would benefit Nicaragua in

both the short and long term. In the short term, ADR would lessen

the pressure on administrative and judicial institutions by resolving

current post-revolutionary property disputes. In the long-term, . . .

ADR would bring more collaborative and problem-solving techniques

to Nicaraguan society. . . . The team believes that a real window of

opportunity exists to establish ADR in Nicaragua and make a long-

lasting improvement in Nicaraguan society.”

1

“The language was ours, to use as we pleased. The literature that

came with it was therefore of peculiar authority; but this literature

was like an alien mythology. There was, for instance, Wordsworth’s

notorious poem about the daffodil. A pretty little flower, no doubt;

but we had never seen it. Could the poem have any meaning for us?”

2

1 Newsletter of the Consortium of Georgia Universities for the Advancement of

Conf‌lict Resolution Theory and Education (Atlanta, GA: August 1995) at 3. It is

now a common occurrence to read regularly about this Western phenomenon

being applied successfully to long-standing problems around the globe.

2V.S. Naipaul, “Jasmine,” in R. Hamner, ed., Critical Perspectives on V.S. Naipaul

(Washington, D.C.: Three Continents Press, 1977).

ADR and Culture

283

The expression “alternative dispute resolution” grew out of popu-

lar dissatisfaction with the administration of justice in the United

States in the 1970s, but ADR developments have not been confined to

that country alone. ADR ideas and practices are blossoming in Canada,

England, Australia and New Zealand. Increasingly, ADR is being pro-

moted in many regions and countries with cultures quite different from

the dominant cultures of the areas where ADR first flourished.

Even within countries such as Canada and the United States that

have remarkable cultural diversity, ADR is being institutionalized in

formal justice systems; adopted for use within governments, businesses

and other organizations; taught in primary, secondary, and post-sec-

ondary educational settings; and generally presented as a common-

sense way of approaching disputes and their resolution.

The growing instances of ADR across cultures have resulted in

important questions:

•What role does culture play in understanding and shaping disputing

behaviour, theories, and structures?

• What is the relationship between ADR practices and culture?

•Are the disputing concepts that make up ADR transferable across

clear cultural divides?

• Are there disputing practices that transcend culture?

• Should there be concerns about cultural diffusion?

• Can ADR have any meaning in different cultures?

This chapter provides an opportunity to consider these and related

questions by reviewing the notion of culture, by considering how cul-

ture influences and is influenced by conflict and by assessing the

impact of culture both on the meaning of ADR and on the ways in

which ADR is practised. For the ADR student or practitioner, factoring

culture into the ADR equation is an important assignment.

B. THE NOTION OF CULTURE

It is perhaps not surprising that the question — what is culture? —

opens up complex and interdisciplinary lines of inquiry that reveal

stark differences in perspective. In many respects the varied notions of

culture that emerge from such an inquiry mirror the politics and con-

tradictions in the meaning of ADR discussed in Chapter 1.

What is culture? The question provokes a bounty of definitions

both in everyday usage of the term and in the literature of various dis-

ciplines. Some notions of culture clearly reflect the classical nine-