What was Alternative Dispute Resolution (ADR)? What is Dispute Resolution (DR)? (An excerpt from Australian Dispute Resolution Law and Practice)

This is an excerpt (taken from the final author version and with edited footnotes) from our new book: Laurence Boulle and Rachael Field, Australian Dispute Resolution Law and Practice (Lexis Nexis, 2017) in which we support the move towards making the language of dispute resolution more contemporary by referring to DR rather than ADR. We look forward to your comments and responses as we post a number of excerpts over the month of December. Rachael and Laurence

Defining dispute resolution is not an easy task.^[1] There are many different processes that fall under the ambit of ‘DR’, and to complicate matters there is much internal diversity within processes which have the same label. When DR processes such as mediation and conciliation started to be widely used, they were collectively referred to as ‘alternative dispute resolution’ (ADR).  The acronym ADR originally denoted processes developed, intentionally or organically, as alternatives to those provided by courts and tribunals in formal justice systems.[2] Initially, there was angst and argument about what should be included in, or excluded from, the term.^[3] While ADR was originally associated with mediation, it came to include other processes such as neutral evaluation and case appraisal. This resulted in NADRAC (the National Alternative Dispute Resolution Advisory Council) defining ADR as,

… an umbrella term for processes, other than judicial determination, in which an impartial person assists those in a dispute to resolve the issues between them. ADR is commonly used as an abbreviation for alternative dispute resolution, but can also be used to mean assisted or appropriate dispute resolution. Some also use the term ADR to include approaches that enable parties to prevent or manage their own disputes without outside assistance.[4]

The NADRAC approach emphasised that ADR was understood in contradistinction to litigation. This reinforced rhetorical dichotomies in the literature around formal versus informal processes; speedy versus slow processes; processes that invite direct party participation versus those that exclude party participation; processes controlled by the parties versus those controlled by third parties; expensive versus inexpensive processes; coercive versus consensual processes; binding versus non-binding processes. These sorts of binary distinctions have always been simplistic and confining, and have long (and rightly) been acknowledged as such. These distinctions were based on false assumptions about levels of consistency and unity within ADR processes,^[5] which obscured ‘the many and important distinctions between different ADR processes, lumping them together as if ADR was one homogenous institution set apart from the courts’.[6] As a result, ADR processes were depicted as ‘the other’ (to litigation), bestowing a primacy on litigation that was historically and socially misleading in terms of the extent of litigation’s contribution to overall dispute resolution systems.[7] There is, however, another sense in which litigation enjoys a normative ‘primacy’ in legal dispute resolution: it has operated, and continues to some extent to operate, as an ultimate point of reference for all other dispute resolution processes and it has historically cast a shadow over their operation.

In the early 1990’s Julian Riekert, one of Australia’s founding writers in the area, identified three descriptors of ADR: first, ADR as including all forms of dispute resolution other than litigation; second, ADR as including dispute resolution processes that leave the form and content of any settlement to the parties; third, ADR as involving non-litigious processes with the intervention of an outside party.^[8] Riekert’s first definition continued the trend of defining ADR by reference to its alternative status to litigation.^[9] ADR was thus positioned for many years as the alternative option, and almost in opposition, to litigation. As a result, ADR processes and practices were viewed by some, particularly in the practising legal profession, with suspicion and distrust.[10] To redress these perceptions there were suggestions that ADR should be understood as signifying ‘additional’,^[11] ‘assisted’,^[12] ‘appropriate’,^[13] ‘administrative’^[14] or ‘amicable’ dispute resolution.^[15]

It is fair to say, then, that the use of the word ‘alternative’ as a descriptor for DR has long been inaccurate.[16] The processes understood to fall within its ambit are no longer  ‘alternative’ or ‘marginal’ because they are in fact often the primary, dominant or mainstream systems for resolving and managing conflicts and disputes, and are often sought out by the parties or mandated by DR clauses or by legislation.[17] Indeed, litigation might now be argued to be the true ‘alternative’ to the mainstream treatments of disputes, notwithstanding its normative influence in law and dispute resolution referred to above. Nevertheless, the term ADR still has currency and the durability of the acronym has meant that proposals for the adoption of terms such as those listed above, or other examples such as ‘innovative’ dispute resolution, or ‘non-adversarial justice’, have not gained the traction that might be expected or that they might deserve.^[18]

While the term ADR remains widely used and recognised, and while it is still the case that formal legal and justice systems continue to some extent to privilege litigation, there is now less anxiety over definitional questions, and over what is and what is not included in generic terms in the field. It is propitious that binary distinctions between ADR and litigation, and their respective attributes, are generally no longer regarded as appropriate. Litigation too has lost much of its assumed consistency and uniformity and currently has its own variations, adaptations and mutations, as we discuss in Chapter 10. Moreover the ‘institutionalisation’ of ADR has brought it within the purview of courts, tribunals, agencies and other aspects of formal justice processes where it is one component of overall systems for and approaches to assisting people in dispute to resolve and manage their matters. In other words, with ADR now established within courts, government agencies and private enterprises it must be viewed as part of the overall schema of dispute handling in the legal system and in society more broadly. Today we have a great diversity of processes available both within and outside the courts. There is also a realisation that whilst most disputes are not dealt with in litigation, non-litigated disputes are managed, at least to some extent, in the ‘shadow of the law’, that is they are informed by what would or could happen if the matter were litigated.^[19]

Our approach in this book is to avoid the term ‘alternative’ in identifying dispute resolution processes other than litigation, and simply to refer to ‘dispute resolution’ (DR) as encompassing all processes, including litigation.[20] ADR remains an historical term of art, recognised and understood by many within the legal and justice communities, but it is no longer a relevant or accurate descriptor for the future of DR practice, especially in legal contexts. It is used in this text only to reflect its use in cases or legislation or where its historical legacy makes it appropriate. When needing to distinguish non-litigious processes we refer to non-litigation DR (NLDR).

^[1] Eric Green was arguably the first to use the term ‘alternative dispute resolution’. See Eric Green, ‘Settling Large Case Litigation: An Alternative Approach’ (1978) 11 Loyola of Los Angeles Law Review 493. The Australian Productivity Commission has also recommended that common definitions about legal services be adopted in order to ‘maximise the usefulness of legal services data sets, (and) reform in the collection and reporting of data’: see recommendation 25.2 in Productivity Commission, Access to Justice Arrangements, Report No. 72 (Australian Government, 2014). See also Australian Law Reform Commission, Review of the Adversarial System of Litigation ADR — its Role in Federal Dispute Resolution, Issues Paper 25 (ALRC, 1998) section 2; Law Reform Commission, Ireland, Report on Alternative Dispute Resolution: Mediation and Conciliation, LRC 98-2010 (LRC Ireland, 2010), http://www.lawreform.ie, citing George Applebey, ‘What is Alternative Dispute Resolution?’ (1991-1992) 15 Holdsworth Law Review 20.

[2] See Frank EA Sander, Varieties of Dispute Processing, Address given at the Pound Conference on Causes of Dissatisfaction with Justice (1976), reprinted in A Leo Levin and Russel R Wheeler (eds), The Pound Conference: Perspectives on Justice in the Future: Proceedings of the National Conference on the Causes or Popular Dissatisfaction with the Administration of Justice (West Publishing Co, 1979).

^[3]  Most notable were debates about whether arbitration could properly be included within the suite of ADR processes.

[4] NADRAC, Dispute Resolution Terms: The Use of Terms in (Alternative) Dispute Resolution, (Australian Government, 2003), 4. See also NADRAC, Your Guide to Dispute Resolution (Australian Government, 2012), 5.

^[5] Brunet, for example, noted that ‘ADR is not a unitary concept’: Edward Brunet, ‘Questioning the Quality of Alternative Dispute Resolution’ (1987) 62 Tulane Law Review 1, 10.

[6] Robert A Baruch Bush, ‘Defining Quality in Dispute Resolution: Taxonomies and Anti-Taxonomies of Quality Arguments’ (1989) 66 Denver University Law Review 335, 343.

[7] For example, Galanter has noted ‘the negotiated settlement of civil cases is not a marginal phenomenon; it is not an innovation; it is not some unusual alternative to litigation’: Marc Galanter, ‘A Settlement Judge Not a Trial Judge: Judicial Mediation in the US’ (1985) 12 Journal of Law and Society 1.

^[8] Julian Riekert, ‘Alternative Dispute Resolution in Australian Commercial Disputes — Quo Vadis?’ (1990) 1 Australian Dispute Resolution Journal 31.

^[9] This, however, did not include socially disapproved methods of dispute resolution such as coercion. Another critique of the word ‘alternative’ is that it implies deviance from a norm, as in ‘alternative life style’; in this sense, too, it was argued that labelling the new developments as ‘alternative’ processes was unfortunate. However, for others the concept ‘alternative’ carried the positive implication of difference from convention. In common parlance ‘alternative’ has a wide range of connotations, from approving notions of something different to the staid and conventional, to derogatory senses of deviation from the accepted and normative.

[10] Owen M Fiss, ‘Against Settlement’ (1984) 93 Yale Law Journal 1073 commenting at 1075: ‘I do not believe that settlement as a generic practice is preferable to judgment or should be institutionalized on a wholesale and indiscriminate basis. It should be treated instead as a highly problematic technique for streamlining dockets.’

^[11] Sir Laurence Street, ‘The Language of Alternative Dispute Resolution’ (1992) 66 Australian Law Journal 194. Street’s preference for the term ‘additional’ did not imply rejection of emphasis on litigation, which he considered a ‘fundamental element’ of western democracy. Rather, he viewed ADR as ‘supportive’ of litigation. See also David Spencer, Principles of Dispute Resolution (Lawbook Co, 2011), 3.

^[12] See, for example, Paul Lynch, ‘The Implementation of Assisted Dispute Resolution in Taxation of Costs in Queensland — Amendments to Order 91 of The Rules of the Supreme Court of Queensland’ (1995) Queensland Law Society Journal 53.

^[13] The term ‘appropriate dispute resolution’ is still used in Victorian legislation, keeping the acronym alive – see, for example, the Civil Procedure Act 2010 (Vic), s 77. See also Department of Justice, Victoria, New Directions for the Victorian Justice System 2004–2014: Attorney General’s Justice Statement (Victorian Government, 2004), 33 where it is said that ADR is increasingly referred to as ‘appropriate dispute resolution’, ‘in recognition of the fact that such approaches are often not just an alternative to litigation, but may be the most appropriate way to resolve a dispute’, citing Chapter 4 of the Victorian Law Reform Commission, Civil Justice Review: Report (Victorian Government, 2008), 212.

^[14] This expression is more limited in that it refers to steps taken during the performance of a construction project by those responsible for delivery of the project rather than by outside third parties. See, for example, Douglas Jones, ‘A Critical Analysis of the Means Commonly Adopted to Avoid Disputes in the Construction Industry’ (1998) 14 Building and Construction Law Journal 31, 33.

^[15] See, for example, David Hollands, ‘FIDIC’s Provision for Amicable Settlement of Disputes’ (1989) 6 (1) International Construction Law Review 33. See also the International Chamber of Commerce, Rules of Arbitration, in force as from 1 January 2012 which refer in Appendix IV on Case Management Techniques to ‘amicable’ dispute resolution methods, http://www.iccwbo.org/products-and-services/arbitration-and-adr/arbitration/icc-rules-of-arbitration/.

[16] In some contexts ‘ADR’ is part of a broader concept of ‘resolution processes’ for example the Civil and Administrative Tribunal Act (NSW) 2013, s 37 is headed, ‘Tribunal to promote use of resolution processes’ and permits the Tribunal  to use (or require parties to proceedings to use) any one or more ‘resolution process’. It defines ‘resolution process’ as any process, including … alternative dispute resolution, in which parties are assisted to resolve or narrow the issues between them.

[17] Anne Bihancov, ‘What is an Example of a Good Dispute Resolution Clause and Why?’ (2014) Evaluation of ADR Paper 3 available from http://www.civiljustice.info/adreval/3.

^[18] In 1994 McLaren and Sanderson proposed the use of the term ‘innovative dispute resolution’: see Richard McLaren and John Sanderson, Innovative Dispute Resolution: The Alternative (Carswell Thomson Professional Publishing, 1994). Another formulation is ‘less-drastic’ forms of dispute resolution: see William Fox, International Commercial Agreements (Kluwer Law International, 3rd ed, 1998), 213. See also, Michael King, Arie Freiberg, Becky Batagol and Ross Hyams, Non-Adversarial Justice (The Federation Press, 2^nd ed, 2014).

^[19] Robert Mnookin and Lewis Kornhauser, ‘Bargaining in the Shadow of the Law: The Case of Divorce’ (1979) 88 Yale Law Journal 950. But see Carrie Menkel-Meadow, ‘Lawyer Negotiations: Theories and Realities — What We Learn from Mediation’ (1993) 56 Modern Law Review 361 at 371, querying whether Mnookin and Kornhauser are correct in their assessment of how the law influences out of court settlements.

[20] Note the title of NADRAC’s definitions publication changed from Alternative Dispute Resolution Definitions in 1997 to Dispute Resolution Terms: The Use of Terms in (Alternative) Dispute Resolution in 2003. See also Policy Developments, ‘Towards Consistency in ADR Terms’ (1998) 1(1) ADR Bulletin 7.

 

 

 

 

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