ADR in Practice

• Author: Andrew J. Pirie
• Profession: Faculty of Law. University of Victoria
• Pages: 238-281

238

CHAPTER 6

ADR IN PRACTICE

A. INTRODUCTION

For many of the same reasons that make the meaning of alternative

dispute resolution complex and ambiguous, ADR in practice defies

precise pronouncements. Part of the challenge lies in the fact that the

ADR field is rapidly expanding. Many initiatives from legal and non-

legal sources, vie for ADR status often without clear coordination.

New pilot projects and experiments with ADR labels focus on an

increasing number of disputing subject matters. The popularity of

ADR also is not confined to a single community, region or country.

ADR has made inroads not only in North America but also in England,

Australia, New Zealand, Europe, Asia, and South America, not to

mention the new frontiers of space and cyberspace.

1

ADR has become

an area of practice of enormous magnitude — its sheer size makes

description difficult.

More than ADR’s scope complicates the task of describing ADR in

practice; it also depends on how ADR is defined. Some versions of ADR

will be at a higher level, go beyond technique, and be about re-engag-

ing the wisdom. Other understandings of ADR may be less expansive

1 For the new frontiers, see K.H. Brockstiegal, “Settlement of Disputes Regarding

Space Activities” (1993) 21 J. Space L. 1; and several articles on ADR in

Cyberspace in (2000) 15 Ohio St. J. on Dis. Res.

ADR in Practice

239

and more constrained. Differing ADR interpretation also will result in

varying ways of how the same disputing practice, say a mediation session,

is understood, discussed, and evaluated. For these reasons, a descrip-

tion of ADR in practice can be not exhaustive enough for some and too

subjective for others.

Despite these words of warning, an overview of several disputing

practices in selected settings is a useful and rewarding exercise. This

analysis can highlight ADR innovations, compare ADR practices across

contexts and point to emerging or dominant ADR themes. A careful

look at ADR in practice can aid in understanding why ADR is being

used in certain situations and not in others, highlighting ADR

strengths and weaknesses in particular applications. A description of

ADR practices also can point to the required knowledge and skills that

work best in these areas. A critical examination of ADR in practice can

further contribute to an appreciation of ADR’s meaning and its devel-

oping ideology. Each of the following sections provides a general over-

view of key contextual features that need to be well understood,

followed by a description of, and commentary on, several ADR prac-

tices in that setting.

B. LABOUR DISPUTES

Labour relations disputes provide a particularly poignant and compel-

ling focus for the study of ADR practice because of the importance and

complexity of these types of disputes. The importance of labour dis-

putes is due, in part, to the enormity of the enterprise. There are large

numbers of labour participants, both employers and employees. The

scope of their activities is wide and labour unrest is a common and fre-

quent event. It is difficult to imagine a subject matter that is more

omnipresent. Labour relations disputes are also important because of

the significant impact they have on society as a whole. Labour disputes

and how they get resolved affect income and employment levels, stan-

dards of living, working conditions, health and safety, costs of goods

and services, market structures, the distribution of wealth, and so on.

As well, labour relations disputes touch more people than just the

immediate parties. Strikes, lockouts, layoffs, slow-downs, work stop-

pages, and even violence, as responses to labour disputes, can impose

serious and lasting economic and social consequences on governments,

businesses, communities, and many individual members of the public

who rely on a stable labour environment for their well-being. Finally,

labour relations disputes generally involve parties who are in a con-

240

ALTERNATIVE DISPUTE RESOLUTION

tinuing relationship, often over an extended period of time. The dynam-

ics of the relationship can be compared to marriage or long-term

partnerships. Disputes that occur within these ongoing relationships

cannot easily be ignored, and the manner in which they are resolved,

or not, can have profound personal repercussions.

Disputes in the labour context are not only very important but

also, in a related way, very complex. Government regulation of labour

is not always confined to a central or single body. Discrepancies and

differences in labour laws among jurisdictions can exist, not only

nationally but also internationally. In addition, the various laws that

govern labour relations and their disputes are constructed from com-

peting and often conflicting economic, political and social policies.

These policies derive from such highly nuanced notions as democracy,

capitalism, corporatism, social justice, environmental sustainability,

equality, the marketplace, and, more recently, concepts such as free

trade, globalization, restraint, recession and deficit reduction. Dispute

resolution in such a milieu cannot be ordinary. What is causing the

labour dispute can go beyond wages and overtime to fundamental

beliefs and values that will define not only the future of labour rela-

tions but also the shape of other societal structures. Finally, labour

relations disputes are not isolated from the long and global histories of

labour movements, trade unionism, collective bargaining practices and

related detail. These rich histories and their resulting traditions and

influences shape the players and the organizations, the expectations,

the hierarchical structures, and the communication lines involved in

labour relations worldwide, making labour disputes that much more

contextually complicated to understand and to follow.

The importance and complexity of labour relations disputes, not

surprisingly, have resulted in considerable attention being given to

how these disputes are best resolved. In fact, the modern history of

ADR generally and the evolution of mediation in particular often refer

to positive influences and even the need for more guidance from estab-

lished dispute resolution practices in the labour field.

The disputing regimes in place to resolve labour relations disputes,

particularly in North America, reflect a palpable tension. This tension

revolves around the twentieth-century search for the ideal of labour-

management cooperation in dispute resolution and the practical matter

that most often labour disagreements are viewed or responded to

adversarially, treated as distributional or “dividing up the pie” prob-

lems. Much like the contrary notions of adversarial and non-adversar-

ial thinking discussed in chapter 2, the theory of how labour disputes

should or could be stands in stark contrast to how labour disputes