Key Concepts in ADR

• Author: Andrew J. Pirie
• Profession: Faculty of Law. University of Victoria
• Pages: 34-91

34

CHAPTER 2

KEY CONCEPTS IN ADR

A. INTRODUCTION

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

35

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.

B. THE TERMS AND TERMINOLOGIES OF ADR

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.

36

ALTERNATIVE DISPUTE RESOLUTION

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