Key Concepts in ADR

AuthorAndrew J. Pirie
ProfessionFaculty of Law. University of Victoria
For almost everyone, the study of ADR will involve exposure to new
ideas and skill sets. This should be expected given the historical, con-
textual, and multidisciplinary complexities of ADR described in chap-
ter 1. Whatever ADR means, it is not unusual for those who work with
or study ADR to acknowledge that this subject matter takes them, to a
greater or lesser degree, into unfamiliar territory.
For some people, the new ideas and skills of alternative dispute
resolution may fit easily with long-standing beliefs that existing sys-
tems of justice are flawed and in need of repair, and that changes are
necessary in how we go about disputing in our society. However, the fit
may be less comfortable for others. ADR may suggest a radical depar-
ture from disputing traditions or cultural norms. It may appear to
question or ignore conventional wisdom about the role of the courts,
the significance of due process, the importance of legal rights, the exer-
cise of power, the struggle for equality, and the utility of commonly
accepted concepts associated with the resolution of disputes. Some
ADR ideas and skills may seem incongruent with personal dispute res-
olution practices and habits that are familiar and time-tested. The dis-
comfort with ADR may be particularly painful for individuals and
organizations with well-established stakes, both personal and eco-
nomic, in the status quo of dispute resolution. Of course, the reaction
Key Concepts in ADR
to the new ideas and skills of ADR will depend on the meaning that is
attributed to this expression.
Whatever the initial reaction to ADR, an understanding of key con-
cepts as outlined below in sections B to E will help in several ways.
First, these key concepts are a way to unpack and see more clearly the
essential elements that are used to give ADR its meaning in theory and
practice. Second, they illustrate there are different ways of thinking
about and practising dispute resolution that may either open up or
foreclose dispute resolution opportunities. In other words, they pro-
vide interesting approaches to how disputes can be analyzed, reacted
to, and resolved. Finally, these concepts can point to the knowledge
and skills that are necessary for practical proficiency in ADR work.
Understanding and working in ADR increasingly is requiring access to
a new vocabulary. This type of prerequisite is a common experience in
various occupations. In law, for example, lawyers and law students
have always been accustomed to using terms and terminologies unique
to that discipline. While mens rea, consideration, the reasonable per-
son, fee-simple, divisions of power, what is justifiable in a free and
democratic society, and other words may have limited use and even
much mystery in everyday discourse, these expressions make up the
working language and foundations of criminal law, contract law, torts,
property law, constitutional law, and other legal subjects.
Like law, ADR has a language that is becoming more and more its
own. There are terms and terminologies that provide the grounding
on which the study and practice of ADR are being built. Words such
as interest-based bargaining, transformative, mediation-arbitration
(med-arb), reframing, and dispute itself are a part of the ADR vocabu-
lary. Those who speak about ADR are expected to be familiar with this
language. Arbitrators have to ask about awards while mediators men-
tion trust, uncovering underlying interests, and caucusing. In negotia-
tion there are high opening demands, boulewareism, and BATNAs.
Restorative justice and sentencing circles are on the agenda of the
criminal justice system. Some suggest NLP (Neuro-Linguistic Pro-
gramming) and music therapy can help. Others offer advice on the
conflict continuum, an elicitive approach to culture, conflict manage-
ment education (CME), or the work of Deutsch, Menkel-Meadow,
Fisher, and Black.
But the terms and terminologies of ADR are unique from those of
other professions or followings in two important ways. First, there are
many sources for the language that makes up alternative dispute reso-
lution theory and practice. As discussed in chapter 1, many disciplines
contribute to the knowledge necessary for a complete understanding of
ADR. The number of sources may vary depending on how widely or
narrowly ADR is viewed but there is really no serious debate that ADR
is not a multidisciplinary field. This multi-sourced lexicon can create
special challenges to mastering the language of ADR. Sorting out where
the ADR expression comes from or should come from so that it can be
understood is taxing enough work but deciding on the right meaning
of a word or expression can be particularly problematic when the vari-
ous contributors provide conflicting definitions, understandings, or
ideologies. The relationship between conflict and dispute, discussed
below, is one example. Some say that conflict and dispute are more
conceptually and practically similar than distinct while others propose
the terms are significantly different. The meaning of culture is another
case in point where the same word can have different definitions
depending on whom you ask. How much of any one discipline’s own
language belongs in ADR also can be difficult to determine. The femi-
nist critique of mediation suggests a working knowledge of equality
theories should be part of a mediator’s repertoire. The expression of
strong emotions in disputing points to the need for dispute resolvers to
be familiar with active listening, the anger arousal cycle, and more but
a line is often drawn between therapy and the activities of ADR practi-
tioners. Second, unlike law, as ADR’s popularity grows, a wide range of
individuals, organizations, and governments increasingly want to learn,
use, or be certified in, the language of ADR. This deepening desire for
accessibility to disputing developments is not surprising. ADR is a
growth industry in a multidisciplinary field. There are opportunities
for advancement, success, satisfaction, stability, and adventure in this
growth. Certainly the attraction of ADR can depend on its ambiguous
meaning. If ADR was mostly focused on court-connected reforms, the
movement might have caught the attention of only a few lawyers and
litigants. But with ADR goals of economic efficiencies in dispute reso-
lution, personal empowerment and transformation, and a reshaping of
entire justice systems, the interest increases. And, because no one is
completely insulated from disputes, everyone has probably engaged in
some form of dispute resolution, whether on their own behalf or for
someone else. All these factors add up to a huge potential demand for
acquiring ADR expertise — a demand far exceeding the usual limits
imposed on entry into other professions or callings with a specialized

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