Mediation, Arbitration, and Alternati e Dispute Resolution (ADR)
Such compre Such comprehen hensiv sivee efforts efforts are are nec necess essary ary to determ determine ine if a varia variableis bleis truly truly interm intermedi ediatein atein the causalseque causalsequence nce between two other variables. See also also: Causa Causatio tion n (Theor (Theories ies and and Models Models): ): ConConceptions in the Social Sciences; Control Variable in Research; Experimenter and Subject Artifacts: Methodolog odology; y; Instru Instrume menta ntall Varia Variable bless in Statis Statistic ticss and Econometrics; Latent Structure and Casual Variables; Moderator Variable: Methodology; Systems Modeling
Bibliography Angrist J D, Imbens G W, Rubin D B 1996 Identification of Journal of the causal causal effects effects using using instrume instrumental ntal variable variables. s. Journal American Statistical Association 91: 444–55 Baron Baron R M, Kenny D A 1986 The moderato moderator–me r–mediat diator or distinction in social psychological psychological research: Conceptual, strategic, and statistical considerations. Journal of Personality and Social Psychology 51: 1173–82 Bollen K A 1987 Total direct and indirect effects in structural equation equation models. In: Clogg Clogg C C (ed.) (ed.) Sociologic Sociological al Methodology. America American n Sociolog Sociological ical Associat Association, ion, Washingt Washington, on, DC, pp. 37–69 Clogg C C, Petkova E, Shihadeh E S 1992 Statistical methods for analyzing collapsibility in regression models. Journal of Educational Statistics 17: 51–74 Cook T D, Campbell D T 1979 Quasi-Experimentation: Design & Analysis Issues for Field Settings . Rand McNally College Pub. Co., Chicago Cook T D, Cooper H, Cordray D S, Hartmann H, Hedges L V, Light R J, Louis T A, Mosteller F 1992 Meta-Analysis for Explanation: A Casebook. Russell Sage, New York Cronbach L J 1982 Designing E aluations aluations of Educational Educational and Social Programs, 1st edn. Jossey-Bass, San Francisco Duncan O D 1966 Path analysis: sociological examples. American Journal of Sociology Sociology 72: 1–16 Holland P W 1988 Causal inference, path analysis, and recursive recursive structural equations models. In: Clogg C C (ed.) Sociological Methodology. American Sociological Association, Washington, DC, pp. 449–93 Principlesof Behaior. D. Appleton HullC HullC L 1943 1943 Principlesof Appleton-Cen -Century tury,, New York MacCorqu MacCorquodal odalee K, Meeh Meehll P E 1948 Operatio Operational nal validity validity of intervening intervening constructs. constructs. Psychological Reiew 55: 95–107 MacKi MacKinno nnon n D P, Dwyer Dwyer J H 1993 1993 Estim Estimati ating ng media mediate ted d effects in prevention studies. E aluation Reiew 17: 144–58 Rubin Rubin D B 1974 Estimating Estimating causal effects of treatme treatments nts in randomiz randomized ed and nonrando nonrandomize mized d studies. studies. Journal Journal of Educational Psychology 66: 688–701 Robins Robins J M, Greenland Greenland S 1992 Identifiabil Identifiability ity and exchange exchange-ability for direct and indirect effects. Epidemiology 3: 143–55 Schatzkin A, Freedman L S, Schiffman M H, Dawsey S M 1990 Validati Validation on of intermed intermediate iate endpoint endpointss in cancer cancer research research.. Journal of the National Cancer Institute 82: 1746–52 Sobel M E 1982 Asymptotic confidence intervals for indirect effects in structural equation models. In: Leinhardt S (ed.) American n Sociolog Sociological ical AssociaAssociaSociological Methodology. America tion, Washington, DC, pp. 290–312 Spirtes Spirtes C, Glymour Glymour P, Scheines Scheines R 1993 Causation, Prediction, and Search. Springer-Verlag, New York West S G, Aiken L S 1997 Toward understanding individual effects in multicomponent prevention programs: design and
analysis strategies. strategies. In: Bryant K J, Windle M, West S G (eds.) The Science Science of Preention: ention: Methodologica Methodologicall Ad ances ances from American n PsychoPsychoAlcohol Alcohol and Substance Substance Abuse Research. America logical Association, Washington, DC Annals of Wrigh Wrightt S 1934 1934 The method method of path path coeffici coefficient ents. s. Annals Mathematical Statistics 5: 161–215
D. P. MacKinnon
Mediation, Arbitration, and Alternative Dispute Resolution (ADR) Mediatio Mediation, n, arbitrati arbitration on and ADR (‘alterna (‘alternative tive’’ dispute dispute resolu resolutio tion) n) are proces processes ses used used to resolv resolvee disput disputes, es, either within or outside of the formal legal system, without formal adjudication and decision decision by an officer of the state. The term ‘appropriate’ dispute resolution is used used to expre express ss the idea that differe different nt kinds kinds of disputes may require different kinds of processes— there is no one legal or dispute resolution process that serves for all kinds of human disputing. Mediation is a process in which a third party (usually neutral and unbiased) unbiased) facilitate facilitatess a negotiate negotiated d consensua consensuall agreeagreement ment among among partie parties, s, withou withoutt render rendering ing a forma formall decision. In arbitration, which is the most like formal adjudication, a third party or panel of arbitrators, most often chosen by the parties themselves, renders a decisi dec ision, on, in terms terms less less forma formall than than a cou court, rt, often often without a written or reasoned opinion, and without formal formal rules rules of eviden evidence ce being being applie applied. d. As noted noted below below,, the full full panopl panoply y of proces processes ses den denomi ominat nated ed under the rubric of ADR now includes a variety of primary and hybrid processes, with elements elements of dyadic negotiation, facilitative, advisory and decisional action by a wide variety of third party neutrals, sometimes combined with each other to create new formats of dispute processing (see Negotiation and Bargaining: Role of Lawyers; International Arbitration; Litigation; Courts and Adjudication; Disputes, Social Construction and Transformation of ; Legal Systems: Pri ate; Lex Mercatoria; Legal Pluralism; Lawyers; Judges; Paralawyers: Other Legal Occupations).
1.
Definitions Definitions and Types Types of Proce Processes sses
In an era characterized by a wide variety of processes for resolving disputes among individuals, organizations, and nations, process pluralism has become the norm norm in both both formal formal disput disputing ing system systems, s, like like legal legal systems systems and courts, courts, and in more informal, informal, private private settin settings, gs, as in priva private te con contra tracts cts and and transa transacti ctions ons,, family disputes, and internal organizational organizational grievance systems. systems. There There are a number number of factors factors that delimit delimit the the kinds kinds of proces processes ses which which partie partiess may may cho choose ose or maybe ordered to use under rules of law, court, or contract. The ‘primary’ processes consist of individual action (self-help (self-help,, avoidance avoidance), ), dyadic dyadic bargaini bargaining ng (negotia(negotia9507
Mediation, Arbitration, and Alternati e Dispute Resolution (ADR)
tion), and third party facilitated approaches (mediation), or third party decisional formats (arbitration and adjudication). ‘Hybrid’ or ‘secondary’ processes combine elements of these processes and include medarb (facilita (facilitated ted negotiati negotiation on followed followed by deci decision) sion),, minitrial minitrialss (shortened (shortened evidentia evidentiary ry proceeding proceedingss followed followed by negotiat negotiation), ion), summary summary jury\ judge judge trials trials (use (use of mock mock jurors jurors or judges judges to hear hear evide evidence nce and issue issue ‘advis ‘advisory ory’’ verdi verdicts cts to assist assist in negoti negotiati ation, on, often often conducted within the formal court system), and early neutral evaluation (third parties, usually lawyers or other experts, who hear arguments and evidence, and ‘advise’ about the issues or values of the dispute, for purposes of facilitating a settlement or structuring the dispute dispute process). process). Increasin Increasing g judicial judicial involvem involvement ent in dispute dispute settlement settlement suggests suggests that judicial, judicial, and often mandatory, settlement conferences are another form of hybri hybrid d disput disputee mec mechan hanism ism.. Retire Retired d judge judgess provid providee a hybrid form of arbitration or adjudication in private ‘rent-a-judge’ schemes that are sometimes authorized by the state. Disput Disputee proces processes ses are also also chara characte cteriz rized ed by the extent to which they are voluntary and consensual (whether in predispute contract agreements, ADR ex ante, or volunt voluntari arily ly undert undertake aken n after after the disput disputee ripens, ADR ex post), or whether they are mandated (by a predispute contract commitment) or by court rule or referral. referral. The ideology ideology that contribute contributed d to the founding of modern mediation urges that mediation should be entered into voluntarily and all agreements should be arrived at consensually (Menkel-Meadow 1995a). Nevertheless, as courts have sought increasingly to ‘manage’ or reduce their caseloads, and have looked looked to ADR proces processes ses as a means means of divert diverting ing cases cases to other fora, even mediatio mediation n may be ‘mandate ‘mandated,’ d,’ although it is usually participation in, not substantive agreement, that is required. The taxonomy of different dispute processes also differentiates between binding and non-binding processes. cesses. Arbitrati Arbitration, on, for example, example, can be structured structured either either way. way. Under some contractua contractuall and statutory statutory schemes (such as the American Federal Arbitration Act), decisions decisions by private private arbitrators arbitrators are final and binding on the parties, and subject to very limited court review, review, including including only such claims as fraud, fraud, corruption of the arbitrator, or, in a few jurisdictions, seriou seriouss errors errors of law or extrem extremee ‘misca ‘miscarri rriag ages es of justice.’ Nonbinding processes, including nonbinding decisi dec isions ons in some some arbitr arbitrati ations ons,, allow allow appea appeals ls or follow-through to other processes, such as mediation or full full trial. trial. Many Many cou court rt annex annexed ed arbitr arbitrati ation on proprograms, for example, allow a de novo trial following an arbitration if one party seeks it, often having to post a bond or deposit for costs. The process of mediation itself itself is non-bi non-bindi nding, ng, in that, that, as it is a con consen sensua suall process, a party may exit at any time; on the other hand, once an agreement in mediation is reached, a binding contract may be signed, which will be enforceable in a court of law. 9508
Final Finally ly,, disput disputee proces processes ses are often often subjec subjectt to different requirements depending on whether they are used used in priva private te settin settings gs (by con contra tract, ct, in employ employmen mentt or other organizational settings) or in public arenas such as courts. Court related or ‘court-annexed’ ADR programs, now encompassing the full panoply of dispute processes, may be subject to greater legal regulation, including selection, training, and credentialing of the arbitrators or mediators, ethics, confidentiality, and conflic con flicts ts of intere interest st rules, rules, as well well as provi providin ding g for greater immunity from legal liability. ADR processes are often differentiated from each other also by the degree of control the third party neut neutra rall has has over over both both the the proc proces esss (the (the rule ruless of proceedings) and the substance (decision, advice, or facili facilitat tation ion)) and the formal formality ity of the procee proceedin ding g (whether held in private or public setttings, with or without formal rules of evidence, informal separate meetings, or ‘caucuses’ with the parties, and with or witho without ut parti particip cipati ation on of more more than than the princi principal pal disput disputant ants). s). ADR proces processes ses are are being being applie applied d increasingly to diverse kinds of conflicts, disputes, and transactions, some requiring expertise in the subject matte matterr (such (such as scient scientific ific and policy policy disput disputes) es) and spawning spawning new hybrid hybrid processes processes such as ‘consensus ‘consensus building’ which engage multiple parties in complex, multi-issue problem solving, drawing on negotiation, mediation and other nonadjudicative processes (Susskind et al. 1999). Althou Although gh there there have have bee been n efforts efforts to develo develop p taxono taxono-mies or predictive factors for assignment of particular case types to particular processes (and some courts which assign or prohibit certain case types in some categories of dispute resolution), for the most part these efforts ‘to fit the forum to the fuss’ (Sander and Goldberg 1994) have been unsuccessful. Amenability of different cases to different processes just as often depends on the personalities of the disputants, parties, lawyers, and third party neutrals as on any particular case type characteristic.
2. Theory Theory and Histor History y of ADR The modern growth growth of arbitrati arbitration, on, mediation, mediation, and other ADR processes can be attributed to at least two different animating concerns. On the one hand, scholars, ars, practi practitio tioner ners, s, con consum sumers ers,, and advoca advocates tes for jus justi tice ce in the the 1960 1960ss and and 1970 1970ss note noted d the the lack lack of respon responsiv sivene eness ss of the forma formall judici judicial al syste system m and sought sought better better ‘quality ‘quality’’ processes processes and outcomes outcomes for members of society seeking to resolve disputes with each each other, other, with with the govern governmen ment, t, or with with priva private te organizations. This strand of concern with the quality of dispute dispute resolution resolution processes processes sought sought deprofessi deprofessional onaliization of judicial processes (a reduction of the lawyer monopoly over dispute representation), with greater acces accesss to more more local locally ly based based instit instituti utions ons,, such such as neighborh neighborhood ood justice justice centers, centers, which which utilized utilized com-
Mediation, Arbitration, and Alternati e Dispute Resolution (ADR)
munity members, as well as those with expertise in partic particula ularr proble problems, ms, with with the hope hope of gener generati ating ng greater party participation in dispute resolution processes (Merry and Milner 1993). Others sought better outcom outcomes es than than those those common commonly ly provid provided ed by the formal justice system, which tend toward the binary, polarized results of litigation in which one party is declared a loser, while the other is, at least nominally, a winner. More flexible and party controlled processes were were beli believ eved ed to deli delive verr the the poss possib ibil ilit ity y of more more creative, Pareto-optimal solutions which were geared to joint outcomes, reduction of harm or waste to as many parties as possible, improvement of long term relations relationships, hips, and greater greater responsiv responsiveness eness to the underlying needs and interests of the parties, rather than to the stylized stylized argument argumentss and ‘limited ‘limited remedial imaginatio inations’ ns’ of cou courts rts and the formal formal justic justicee system system (Menke (Menkel-M l-Mead eadow ow 1984 1984,, Fishe Fisherr et al. al. 1991 1991). ). Some Some legal legal and ADR processes (like arbitration) are rule based, but other forms of ADR (negotiation and mediation) are thought to provide provide individua individualize lized d solutions solutions to problems, rather than generalized notions of ‘justice.’ A second strand of argument contributing to the developme development nt of ADR was, however, however, more quantiquantitatively or efficiency based. Judicial officers, including those at the top of the American and English justice system systems, s, argue argued d that that the exc excess essiv ivee cost cost and delay delay in the litigation system required devices that would divert cases from court and reduce case backlog, as well as provide other and more efficient ways of providing access acc ess to justic justicee (Burg (Burger er 1976 1976,, Woolf Woolf 1996 1996). ). This This efficiency efficiency based based impetus impetus behind behind ADR encourage encouraged d both court-man court-mandated dated programs programs like court-anne court-annexed xed arbitration for cases with lower economic stakes, and encouraged contractual requirements to arbitrate any and all disputes arising from services and products provided provided in banking, banking, health health case, case, consumer, consumer, securities securities,, educational, and communication based industries. Modern ADR structures are related only loosely to their historical historical anteceden antecedents. ts. In many countries, countries, arbitration had its origins in private commercial arbitrations, outside of the formal court structure, and used principally by merchants when disputing with each other (Dezalay and Garth 1996). In the United States, labor arbitration developed to secure ‘labor peace,’ as well as to develop a specialized substantive ‘law of the shop floor’ (Fuller 1963). Early use of mediation or conciliation occurred in some courts and communities seeking both to reduce caseloads and to provide more consensual agreements in ethnically or religiously homogeneous areas (Auerbach 1983). Indeed, mediation and other consensually based processes are thought to work best in regimes where where there there are shared shared value values, s, whethe whetherr based based on common common ethnic ethnicity ity,, or commun communita itaria rian n or politi political cal value valuess (Shapi (Shapiro ro 1981 1981). ). In Asian Asian and and other other nation nationss with with more communitarian and harmony based cultures (as contraste contrasted d to more litigati litigative ve or individua individualisti listicc cultures), tures), mediation mediation is often the preferred preferred form of dispute dispute
resolution, but it too has been used for system or political political regime purposes beyond resolving resolving the disputes putes of the partie partiess (Lubma (Lubman n 1967 1967). ). Thus, Thus, most most politi politicalregim calregimes es have have had to deal deal with with both both public public and private forms of dispute resolution that often supplement, but sometimes challenge or compete with, each other. The introduction or ‘revival’ of multiple forms of dispute resolution (including mediation, arbitration, ombuds, ombuds, and conciliat conciliation) ion) within the legal legal system system probably dates to the 1976 conference on the ‘Causes of Popular Popular Dissatisf Dissatisfacti action on with the Administr Administration ation of Justice’ at which the idea of a ‘multidoor courthouse’ house’ was introd introduce uced d in order order to mee meett both both the caseload needs of the judicial system and the ‘quality of justice’ needs of consumers in a rapidly growing arena arena of legall legally y and cultur culturall ally y cogniz cognizabl ablee claims claims (Sander 1976). More deeply contextualized study of the social social transf transform ormati ation on of con conflic flicts ts into into legall legally y cogniz cognizabl ablee claims claims by a commun community ity of sociol sociolega egall scholars (Felstiner et al. 1980–81), drawing on anthropological pological,, sociologi sociological, cal, political political,, and psychologi psychological cal insights, also contributed to the theoretical, as well as practical, significance of pluralism in disputing.
3. Applic Applicati ations ons Each Each of the ADR proces processes ses have their their own logic, logic, purposes, purposes, and jurisprude jurisprudentialjustifica ntialjustifications tions.. Mediation Mediation and conciliation are often used to improve communications cations between between parties, parties, especiall especially y those with preexisting relationships, to ‘reorient the parties to each other’ (Fuller 1971) and to develop future oriented solutions to broadly defined conflicts. Arbitration, on the other hand, being more like adjudication (Fuller 1963, 1978) is used more often to resolve definitively a concrete dispute about an event which has transpired and requires fact finding, interpretation of contractual terms, or application of legal principles. Thes Thesee basi basicc form formss have have been been adap adapte ted d to a numb number er of subject areas and dispute sites. As regular use of these formats of dispute resolution becomes more common, mediat mediation ion seems seems to be overta overtakin king g arbitr arbitrati ation on as a preferred method of dispute resolution (because of the ideology of party self-determination and the flexibility of agreements). Arbitration, Arbitration, still most commonly used used in labor disputes, is now the method of choice in form contracts signed by consumers, as well as merchants. Arbitration has, thus far, been the mode of choice for resolving international commercial, investment, and trade disputes, such as in the World Trade Organization (WTO) and the General Agreement on Tariffs and and Trade Trade (GATT (GATT). ). Arbitr Arbitrati ation on has also also bee been n deployed ployed in new forms of disputes disputes developing developing under both domestic and international intellectual property regimes. Various forms of mediation and arbitration are are also also being being used used increa increasin singl gly y to resolv resolvee transtransnational national disputes disputes of various various kinds (political (political,, economic, economic, natural resource allocation, and ethnic violence) and 9509
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are employed by international organizations such as the United Nations and and the Organization Organization of American American States States,, as well well as multin multinati ationa onall trade trade and treaty treaty groups groups (NAFTA, the European Union, and Mercosur) and nongovernmental organizations in human rights and other issue related disputes (Greenberg et al. 2000). Beginn Beginning ing in the United United States States,, but now in use internationally, mass injury (class action) cases, both involving personal and property damages, have been alloca allocated ted to ADR claims claims facili facilitie ties, s, utiliz utilizing ing both both arbitr arbitral al and mediat mediativ ivee forms forms of indiv individu idual al case case proces proces-sing. sing. In legal legal regime regimess all all over over theworld, theworld, familydispu familydisputes tes are assigned increasingly to mediative processes, both for child child custod custody, y, andsupport andsupport andmaintena andmaintenanceissue nceissues. s. In many nations, this growth in family mediation has spur spurre red d the the deve develo lopm pmen entt of a new new prof profes essi sion on of mediators mediators,, drawn drawn from social work or psycholog psychology, y, who sometimes compete with lawyers both in private practice and as court officers (Palmer and Roberts 1998). In many jurisdictions some form of referral to ADR is now now requ requir ired ed befo before re a case case may may be trie tried. d. InIncreasingly, however, parties to particularly complex disputes, disputes, such as environme environmental ntal,, mass torts, or governgovernmental mental budge budgetin ting, g, may may con conve vene ne their their own ADR processes, with a third party neutral facilitating a new form of public participatory process which combines negotiation, fact-finding, mediation, and joint problem solving. Such ‘consensus building’ processes have also been applied to the administrative tribunal processes cesses of both rule-making rule-making and administr administrativ ativee ad judic judicati ation on in a new proces processs called called ‘reg-n ‘reg-neg eg’’ (negot (negotiat iated ed rule-making or regulation). Although Although ADR has been considered considered,, until quite recently,principa rece ntly,principally lly an American American alternati alternative ve to courts, courts, the use of ADR is spreading slowly around the world, being used to relieve relieve court congestion congestion,, provide provide expert pertis isee in vari variou ouss subj subjec ectt matt matter er disp disput utes es (e.g (e.g., ., construction, labor matters, family law), build transnational dispute systems for economic, human rights, and political political issues, issues, and to offer alternative alternative justice system systemss where where there there is distru distrust st of exist existing ing judici judicial al instit instituti utions ons.. The use of ADR acros acrosss border borderss and cult cultur ures es,, rais raises es comp comple lex x ques questi tion onss abou aboutt inte interrcultural negotiations (Salacuse 1998) and multijurisdictional sources of law or other principles for dispute resolution.
4. Cont Contro roersies The use of mediatio mediation, n, arbitrati arbitration, on, and ADR processes, processes, in lieu of more traditional adjudication, has not been witho without ut its con contro trover versie sies, s, review reviewed ed briefly briefly in this this section. 4.1
Pri atization of Jurisprudence
With With the increa increased sed use of negoti negotiate ated d settle settlemen ments, ts, mediation mediation,, and private private arbitrati arbitration, on, there has been 9510
concern that fewer and fewer cases will be available in the public arena for the making of precedent (Fiss 1984), and debate about and creation of rules and politi political cal value valuess for the larger larger commun community ity (Luban (Luban 1995). As settlements are conducted in private and often have confidentiality or secrecy clauses attached to them, them, others others will will not learn learn about about wrongs wrongs commit committed ted by defendants, and information which might otherwise be discoverable will be shielded from public view. Settle Settlemen ments ts may may be based based on non-le non-lega gall criter criteria, ia, threat threat-ening ening compli complianc ancee with with and and enforc enforceme ement nt of law. law. Claim Claimss are more likely to be individualized than collectivized. Whethe Whe therr there there is more more priva privatiz tizati ation on or secrec secrecy y in the settle settlemen mentt of legal legal disput disputes es than than at some some previ previous ous time time remain remainss itselfa itselfa subjec subjectt of con contro trove versyas rsyas empiri empirica call studies studies document document relative relatively ly stable stable rates rates of non-judic non-judicial ial case terminations (at over 90 percent in many jurisdictions and across all types of disputes) (Kritzer 1991). Relate Related d con concer cerns ns about about the priva privatiz tizati ation on of the judicial judicial system include include increased increased indirect state intervention in the affairs of the citizenry through more disputing institutions, at the same time that the exit of wealthier litigants gives them less stake in the quality and financing of public justice systems (Abel 1982). The deb debate ate cen center terss on whethe whetherr disput disputee resolu resolutio tion n systems can serve simultaneously the private interests of disputants before them and the polity’s need for the articulation of publicly enforced norms and values (Menkel-Meadow 1995b). 4.2 Inequalitie Inequalitiess of of Bargaining Bargaining Power
A number of critics have suggested that less powerful members of society, particularly those subordinated by race, ethnicity, class, or gender, will be disadvantaged taged disproport disproportiona ionately tely in ADR processes processes where where there are no judges, formal rules or, in some cases, legal representatives to protect the parties and advise them of their legal entitlements (Delgado et al. 1985, Grillo 1990–91). Responses from ADR theorists suggest gest that that there there is little little empiri empirica call evide evidence nce that that less less advantag advantaged ed individua individuals ls or groups groups nece necessari ssarily ly fare better in the formal justice system, and that sophisticated isticated mediators mediators and arbitrato arbitrators rs are indeed indeed sensitive sensitive to power power imbala imbalance ncess and can can be traine trained d to ‘corre ‘correct’ ct’ for them without endangering endangering their ‘neutrali ‘neutrality’ ty’ in the ADR process. Many private ADR organizations have begun developing standards for good practices and Due Process Process protoc protocols ols to protec protectt the partie partiess and ensure the integrity of the process. 4.3 E aluation and Empirical Verification of Effecti eness
There are few robust research findings with respect to the the effec effecti tive vene ness ss of ADR ADR in meet meetin ing g its its clai claime med d advantages. Recent findings from studies of ADR in the American federal courts have been contradictory about about wheth whether er or not arbitr arbitrati ation, on, mediat mediation ion,, and
Mediation, Arbitration, and Alternati e Dispute Resolution (ADR)
some forms of early neutral evaluation do decrease case processing time or costs, either for the parties or the system. Preliminary studies from England demonstrate onstrate low usage usage of mediation mediation schemes schemes (Genn (Genn 1999). 1999). Yet studies continue to demonstrate high satisfaction rates among users of arbitration and mediation programs (MacCoun et al. 1992), and higher compliance rates with mediated outcomes than traditional adjudication (McEwen and Maiman 1986). In light of the variation in ADR programs, it is too early for there to be sufficie sufficient nt data data bases bases for acc accura urate te compa comparis risons ons between processes.
See also also: Conflic Conflictt and Conflic Conflictt Resolu Resolutio tion, n, Soc Social ial Psycholog Psychology y of; Conflict: Conflict: Anthropolo Anthropologica gicall Aspects; Aspects; Conflict Sociology; Dispute Resolution in Economics; Internati International onal Arbitrati Arbitration; on; Lex Mercatoria Mercatoria;; Parties: Parties: Litigants and Claimants
4.4
Bibliography
Distortion Distortionss and Deform Deformations ations of ADR Processes Processes
Within the nascent ADR profession there is concern that the early animating ideologies of ADR are being distorted by their assimilation into the conventional justi justice ce system system.. Within Within a moveme movement nt that that sought sought to deprofessi deprofessionali onalize ze conflict conflict resolution resolution there are now competing competing professional professional claims for control control of standards, dards, ethics ethics,, creden credentia tialin ling, g, and and qualit quality y con contro troll between lawyers and nonlawyers. Processes like mediation ation that were conce conceived ived as voluntary voluntary and consensua consensuall are now being mandated by court rules and contracts. Proces Processes ses that that were were suppos supposed ed to be creati creative, ve, flexflexible and facilitat facilitative ive are becoming becoming more rigid, rigid, rule and law based, and judicialized as more common law is created by courts about ADR, and more laws are passed passed by legislat legislatures. ures. The overall overall concern is that a set of processes developed developed to be ‘alternative ‘alternative’’ to the traditional judicial system are themselves being coopted within the traditional judicial process with its overwhelming adversary culture. Policy makers and practitioners in the field are concerned about whether a private market in ADR is good for ‘disciplining’ and competing with the public justice system or whether, on the other hand, there will be insufficient accountability within a private market of dispute resolution.
5. The Future Future of ADR Ther Theree is no ques questi tion on that that the use use of a vari variet ety y of different different processes processes to resolve resolve individua individual, l, organiza organiza-tional, tional, and internatio international nal problems problems is continuing continuing to expand. expand. New hybrid hybrid forms of ADR (as in mediatio mediation n on the Internet) are developing to help resolve new problems, with greater participation by more parties. Large organizations are creating their own internal dispute resolution systems. There are clear trends in favor favor of mediation mediation and arbitrati arbitration on in the internati international onal arena, where globalization of enterprises and governmental interests require creative and simple processes that are not overly attached to any one jurisdiction’s substantive law, to promote goals of efficiency, fairness, clarity, and legitimacy, particularly in regimes with underdeveloped formal legal systems. It is also clear that there is competition over who will control such processes, and which processes will dominate in
which spheres of human disputing and deal-making. The likely likely result result is that that the creati creative ve plural pluralism ism and flexibility of ADR will be subject increasingly to its own forms of formality and regulation in an effort to keep its promises of efficiency, participation, better quality outcomes, and justice.
Abel R 1982 The contradictions of informal justice. In: Abel R (ed.) The Politi Politics cs of Informal Informal Justice: Justice: The Americ American an Ex perience. Academic Press, New York Disputes Without Without AuerbachJ AuerbachJ 1983 JusticewithoutLaw? Resol ing Disputes Lawyers. Oxford University Press, New York Burger Burger W 1976 Agenda Agenda for 2000 AD—need AD—need for systemat systematic ic anticipation. Federal Rules Decisions 70: 92–4 Delgado R et al. 1985 Fairness and formality: Minimizing the risk of prejudice in alternative dispute resolution. Wisconsin Law Reiew 1985: 1359–404 Dezal Dezalay ay Y, Garth Garth B 1996 1996 Dealing Dealing in Virtue: Virtue: International International Commer Commercia ciall Arbitrat Arbitration ion and the Construc Constructio tion n of a TransTransnational Legal Order. University of Chicago Press, Chicago Felsti Felstiner ner W, Abel Abel R, Sarat Sarat A 1980–8 1980–81 1 The eme emerge rgence nce and transformation of disputes: Naming, blaming and claiming. Law & Society Re iew 15: 631–54 Fisher R, Ury W, Patton B 1991 Getting to Yes: Negotiating Agreement Without Gi ing In, 2nd edn. Viking Penguin, New York Fiss O 1984 Against settlement. Yale Law Journal 93: 1073–90 Fuller Fuller L 1963Collectivebargai 1963Collectivebargainingand ningand thearbitrator. thearbitrator. Wisconsin Law Reiew 18: 3–47 Fuller Fuller L 1971 Mediation: Mediation: Its form and function functions. s. Southern California California Law Reiew 44: 305–39 Fuller L 1978 The forms and limits of adjudication. Harard Law Reiew 92: 353–409 Genn H 1999 The Central London County Court Pilot Mediation Scheme Scheme:: Final Final Report Report. Lord Lord Chance Chancello llor’s r’s Depart Departmen ment, t, London Greenberg M C, Barton J, McGuinness M E 2000 Words Oer War: Mediation and Arbitration to Preent Deadly Conflict. Rowman & Littlefield, Lanham, MD Grillo T 1990–91 The mediation alternative: alternative: Process dangers for women. Yale Law Journal 100: 1545–610 Kritzer H 1991 Let’s Make A Deal: Understanding the Negotiation Process Process in Ordinary Ordinary Litigation Litigation. Universi University ty of Wisconsi Wisconsin n Press, Madison, WI Luban D 1995 Settlements and the erosion of the public realm. Georgetown Law Journal 83: 2619–62 Lubman Lubman S 1967 1967 Mao and mediat mediation ion:: Politi Politics cs and and disput disputee resolution in communist China. California Law Re iew 55: 1284–359 MacCo MacCoun un R, Lind Lind E A, Tyler Tyler T 1992 1992 Alter Alternat native ive disput disputee resolution in trial and appellate courts. In: Kagehiro D K, Handbook k of Psycho Psycholog logy y and Law. Springer Laufer Laufer W S (eds.) (eds.) Handboo Springer-Verlag, New York McEwen C A, Maiman R J 1986 The relative significance of disputing forum and dispute characteristics for outcome and compliance. Law & Society Re iew 20: 439–47
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Mediation, Arbitration, and Alternati e Dispute Resolution (ADR) Menkel-Meadow C 1984 Toward another view of legal negotiation: The structure of problem solving. UCLA Law Re iew 31: 754–842 Menkel-Meadow C 1995a The many ways of mediation: The transformation transformation of traditions, traditions, ideologies, paradigms and practices. Negotiation Journal 11(3): 217–42 Menkel Men kel-M -Mead eadow ow C 1995b 1995b Whose Whose disput disputee is it anyway anyway?? A philosophical and democratic defense of settlement (in some cases). Georgetown Law Journal 83: 2663–96 Menkel-Meadow C 1997 When dispute resolution begets disputes putes of its own: Conflicts among dispute dispute professi professional onals. s. UCLA Law Re iew 44: 1871–933 Merry S, Milner N 1993 The Possibility of Popular Justice: A University ity of Case Study of American Community Justice. Univers Michigan Press, Ann Arbor, MI Palmer M, Roberts S 1998 Dispute Processes: ADR and the Primary Forms of Decision Making. Butterworth, London Salacuse J 1998 Ten ways that culture affects negotiating style: Some survey results. Negotiation Journal 14(3): 221–40 Sander F 1976 Varieties of dispute processing. Federal Rules Decisions 70: 111–34 Sander F, Goldberg S 1994 Fitting the forum to the fuss: A user friendly guide to selecting an ADR procedure. Negotiation Journal 10: 49–68 Political Analysis. Shapiro M 1981 Courts: A Comparati e and Political University of Chicago Press, Chicago Susskind L, McKearnan S, Thomas-Larmer J 1999 The Consensus Building Handbook: A Comprehensi Comprehensi e Guide to Reaching Agreement. Sage, Thousand Oaks, CA Woolf Lord 1996 Access to Justice: Final Report to the Lord Chancellor Chancellor on the Ci il Justice System . HMSO, London
control; control; (e) systemati systematicc comparison comparison of the modified modified object and the control. ‘Object’ or ‘state of affairs’ is deliberately vague: experiments can be performed on physic physical al system systemss (for (for instan instance, ce, atoms) atoms),, biolog biologica icall systems systems (organism (organisms, s, populatio populations ns or ecosystem ecosystems), s), or social individuals or systems (people, social groups, economies). The experimental and control objects are normally constructed through selection or statistical sampl samplingto ingto repres represent ent a specifi specified ed popula populatio tion n or natura naturall or social kind.
1.1 The Ethical Ethical Orientatio Orientation n of Experi Experimenta mental l Methods
The ethical ethical issues issues in experi experimen ments ts arise arise out of the various operations performed to constitute, observe, modify and compare the experimental object and the control. control. These issues fall into three main groups: groups: the interests of the experimental object and control; the charac character ter,, motiv motivati ation on and and beh behav avior ior of the experi experi-menters; menters; and the the impact impact the experimen experimentt has on current current and future social interests. In addition, consideration must be given to the ethical issues of scientific research generall generally: y: including including sound methodolog methodology, y, accurate accurate and open publication, and fair dealing with the public.
C. Menkel-Meadow Copyright # 2001 Elsevier Science Ltd. All rights reserved.
Medical Experiments: Ethical Aspects Exper Experime imenta ntall method methodss are of great great import importan ance ce in social and natural science. This article describes the nature of experiment, the ethical nature of the experimenter–subject relationship, the rights and interests approach to subject protection, the social impact of experi experimen mental tal method methods, s, and the socia sociall con contro troll of experiment.
1. The Nature Nature of Expe Experim riment ent While a precise definition of an experiment is hard to give, give, for present present purpos purposes es we can can identi identify fy the key elements as (a) a definite state of affairs for investigation (the experimental object); (b) a second definite state of affairs, similar in all relevant respects to the experimental object (the control object); (c) deliberate and controlled modification of the experimental ob ject; (d) observation of the experimental object, the process of modification, the modified object and the
1.2 Experimenta Experimentall Objects, Objects, Subjects Subjects and Participa Participants nts
Confusingly, in the literature what is called here the ‘experimental object and control’ are usually referred to as the subjects of the experiment. There is a whole history of philosophy leading up to this terminology. Here it has been avoided, in order not to prejudice the question of what kinds of thing are the objects of the experiment. For instance, plants would not normally be thought of as ‘subjects,’ but people would be. The term ‘object’ is preferred here, to designate the ‘thing’ on which which the experime experimenter nter acts. Most experime experiments nts presume or create a docile object which is malleable to the experimenter’s will. The language of ‘subjects’ is illuminating too. The subject in an experiment is both ‘subject ‘subject to’ the experimenter experimenter in the political political sense, sense, albei albeitt norma normally lly with with the subjec subject’s t’s con consen sentt (again (again,, there there is a political political analogy) analogy).. But in philosophy philosophy or linguisti linguistics, cs, ‘subject’ normally means the agent (the subject of a sentence, the knowing subject), as distinct from the object, which is acted upon. These terminological issues are far from academic. Practically, there is a debate in medical research with patients about whether it is better to call the ‘subjects’ participants, in part because human-subject research usually requires the cooperation of its subjects and their action in compliance with the requests of the resea research rcher, er, and in part part bec becaus ausee the ‘subje ‘subject’ ct’ desdesignat ignation ion is felt felt to be demean demeaning ing and oppres oppressiv sive. e.
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Inte Intern rna ation tiona al Ency ncyclop cloped edia ia of the the Soci Socia al & Beha Behav viora iorall Scie Scienc ncees
ISBN: SBN: 0-08-08-0 043076-7
