Guest Post: The ADR Paradox – Head versus Heart?

Only three decades ago, Alternative Dispute Resolution (ADR) was a novel idea. Early pioneers like Frank Sander, a Harvard University Law Professor at the time had a vision, which hoped to address a growing dissatisfaction amongst lawyers and clients with the administration of justice as it stood. ADR was a cutting edge concept, one which Professor Sander felt would heal the rift conventional justice had caused between the legal process and just outcomes.

Speaking at the now famous Roscoe Pound Conference of 1976, Frank Sander outlined the beginnings of ADR as we know it: arbitration, mediation and negotiation. He reminded his audience that part of a good lawyer’s remit was to try to steer disputes away from the courts and to help clients resolve their differences outside of that particular arena. Much like today, the US courts of the seventies were facing backlogs and an increased pressure due to the mounting cases making their way to court. Sander felt there had to be a better way to help resolve conflict and unclog the already manic and burdened court system.

ADR was also a response to the growing understanding that cases varied widely in substance and each type needed their own system to process the details and to allow for a more sophisticated end result. Sander felt the courts were highly specialised and therefore should only be used for very specific cases. The rest, he felt, needed to be channelled into different processes, which in turn would free up the courts, so that they could attend to those cases they were best suited to address. But for Sander, it was not just about allowing the courts to move freely again and retain their status as the “ultimate agency capable of effectively protecting the rights of the disadvantaged.” It was also about access to justice for all by creating a wider set of choices to resolve disputes and increase party satisfaction all round.

Setting out different types of cases and the proposed routes for each using alternative conflict management strategies, Professor Sander outlined what we now know to be the flexible modus operandi of modern ADR. Frank Sander understood that cases were nuanced and required a far greater degree of flexibility than currently allowed via conventional adjudication  in order to be able to fine-tune outcomes and to provide solutions which actually solved the dilemmas before the clients and allowed for much faster, and effective resolution. He was not to know, that thirty years later, his theories and methods for ADR were to be so effective that they would become a global phenomenon and travel around the world.

Today, ADR has become a staple of law firms and mediation agencies in a global setting. It is widely regarded as a desirable alternative to formal courses of action and has been shown to be more effective both economically and in the long term – mediated agreements tend to last longer than their court ordered counterparts. So why, despite well established data which shows that ADR works better, and resolves disputes faster than the adversarial court process, do parties still shun Alternative Dispute Resolution?

Current research suggests that when UK cases were referred for ADR by the courts, around 80% of defendants objected, preferring to have their day in court.

Their day in court.

Despite the overwhelming and well established research which tells us time and again that ADR is cost-effective, quick, easy to use and saves time, parties appear to be thinking with their hearts and not with their heads. And that is a natural reaction to any dispute. A very human one.

Justice is often synonymous with the redressing of an imbalance at best, and the need for revenge, at worst. We can’t ignore the reality: legal disputes are intertwined with emotion, just as process is entwined with the law. And clients may be looking for retribution, in circumstances where they feel terribly wronged.

ADR offers clients the chance to redress imbalances, but unlike the courts, it does not offer an extended audience or promise a public battle of epic proportions. Instead, ADR, like a quiet sage, offers parties the chance to find peace and settlement, without the often heightened levels of anxiety adversarial court processes bring.

So why do parties still shy away from a process that offers so much? Perhaps a great deal stems from public perception, the view that ADR methods like mediation are still ‘new’ and, not least of all, the emotive complications that arise from an agreement which has deteriorated. Professor Sander was all too aware of the emotional aspects of disagreement. He touched upon the need to supply a “constructive outlet for suppressed anger and frustration,” in his lecture at the Pound Conference. And whilst court rooms might offer an outlet in this way, there is always a price to pay for engaging in battle.

Natasha Phillips is a legal researcher focusing on child welfare and the reformation of family law and policy in the UK. She also works as a copywriter.

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