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ADR has lost its ‘alternative’ way
By Linda Ippolito

September 14 2012 issue


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What happened to the “alternative” in “alternative dispute resolution?”
Having practised through the rise in the ADR movement since the early nineties, I have watched what promised to be an expansion of the profession start to implode on itself. Creative, fluid processes have become standardized, dehydrated “five-step” formulas approached with the same rational-logical mindset that led us to look outside the box in the first place.

Even the promise of collaborative family practice and circle processes in criminal and youth justice are at risk of institutionalization and the formulaic application that follows.

After post-graduate studies in ADR and now nearing the end of a PhD in conflict resolution, I have come to the conclusion — ​without taking away the good work of so many of my colleagues — ​that, at best, what we are practising within the legal profession is “PDR” — ​parallel dispute resolution. It is certainly not “alternative,” and that is a real pity.

We have “normalized” ADR, made it marketable, accessible and understandable to our clients as an “alternative” to court. We have recast it in our own image, adapted it to our mindset and for our purposes rather than expanding ourselves outward to meet it. Instead of taking the opportunity to open ourselves up to the larger world of conflict resolution, we have taken these practices and adapted them to fit into the legal box. And thus, it has become PDR. It has been institutionalized and formularized within the profession, and annexed by the courts as a form of triage and way to lessen the burden of an ever-expanding docket.

But judges, retired judges and lawyers are not, by default, competent ADR practitioners. Unless we have received specific training — ​and not just a weekend course — ​we have limited competencies in this area. ADR-related courses have only recently appeared in law school curricula; veteran lawyers have received whatever ADR education we have by way of continuing education, seminars, or osmosis. Sadly, this does not equate to the necessary in-depth knowledge of conflict resolution and analysis needed to practice ADR other than in the most rudimentary way.

Our legal training and skills are rooted in a process whose ultimate goal is to determine, or have determined, “the Truth,” from which follows a finding of “right” and “wrong” behaviour, and then establishes the consequences of the “wrong behaviour.” In adapting this approach and mindset to ADR, lawyers have largely gravitated toward a form of mediation that is evaluative in nature and geared to assist in identifying the weaknesses of each side’s case should the matter proceed to litigation, to soften the parties’ palates toward a “compromise” solution. ADR is sold with the promise of “win/win” outcomes but when practised in an unimaginative way it results more often than not in what UBC law professor Michelle LeBaron terms “mostly okay/mostly okay.”

Rather than using ADR as an opportunity to delve into where the root causes of discord lie, we limit its application to putting out episodic fires of conflict with varying degrees of success and satisfaction for our clients.

ADR is much more than an alternative to litigation and our contribution to the field can be infinitely more meaningful and significant than it is at present. How, then, do we go about accomplishing that goal?

To move toward it, we need to focus on acquiring “alternative” knowledge and competencies in the three Ps: pedagogy, practice and process. We need more courses at law school and through continuing education that offers interdisciplinary approaches to negotiation and problem-solving. We need to increase our capacities and expand our comfort zones into the realm of emotions. We need to realize that conflict lives in not only the material but the relational and symbolic dimensions, and we need to feel comfortable incorporating things like ritual, art, storytelling and other creative modalities into our processes. We need to expand our knowledge related to things like psychology, sociology, understanding the neuroscience of conflict, and the complex role of culture in an increasingly diverse society. We need to design processes that are dynamic and innovative, and work with professionals from other disciplines to pool our knowledge bases and problem-solving perspectives. We need to re-evaluate our roles and goals within these processes and replace the old metaphors of war and games with alternative metaphors that re-envision dispute resolution as a collective, co-operative venture.

At the heart of conflict and effective ADR are relationships — ​building, mending and ending them in ways that are compassionate, durable and sustainable — ​whether those relationships are corporate mergers, contract creation or breach, family breakdown, wrongful dismissals or personal injuries. To work effectively in the world of relationships means being able to act outside, as well as inside, the rational-logical realm of traditional legal practice. By expanding our skills, our practice competencies and embracing more innovative processes we will truly be practising in the real field of Alternative Dispute Resolution — ​an exciting, creative, and socially transformative place to be.

Linda Ippolito is a senior family law practitioner and adjunct professor at Queens University and Osgoode Hall Law School.

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