Maintaining ADR Integrity
Just up at SSRN last Thursday - Maintaining ADR Integrity - by Carrie Menkel-Meadow of Georgetown University Law Center and self professed "member of the ADR founding generation".
Modern ADR was born 30 years ago in response to the failings and abuses of the then prevailing dispute resolution mechanisms, especially litigation. 30 years on it seems we are facing failures of our own.
'The initial goals of the ADR movement are contrasted to some recent developments and challenges to these goals, with a focus on some key issues to watch in the future - "sham" processes, misuse of processes for adversarial gain, unethical uses, incompetent parties, lawyers and neutrals and dilution of the original goals of quality and "tailored" dispute resolution...
Nevertheless, for us, the founding generation, there is some unease as we contemplate some recent abusive uses of our well-intentioned ideas for multiple processes and party determination. Increasingly, there is fear that clever lawyers and manipulative and profit-hungry (and cost minimizing) business owners and legal clients have learned to misuse some forms of ADR for less-than-honest purposes. In my own practice, I have seen lawyers manipulate the mediation and arbitration process to force out information from the other side, later to be used adversarially, rather than collaboratively, in subsequent processes - after refusing to agree to a solution outside of litigation...'[read more]
3 comments:
We mediators and arbitrators should not lose sight of the fact that the attorneys who utilize our dispute resolution services are dispute resolvers themselves, they are just adversarial dispute resolvers instead of collaborationist dispute resolvers.
Our job as resolution facilitators is not to help the parties achieve a deal that we can live with through a process that we are comfortable with, it is to help the parties achieve a deal that they can live with through any available process.
Let's not elevate the deal-making process over the deal. The forum doesn't have a vote in "fitting the forum to the fuss."
Kevin, I think you are spot on when you say that we mediators need to recognise most lawyers are adversarial dispute resolvers instead of collaborationist dispute resolvers - that's the reality of practice and one we should not try to wish away but I don't subscribe to the theory that our role is to help the parties achieve a deal "through any available process" - that's a bridge too far for me - as my various posts on med/arb etc attempt to argue.
Thanks, Geoff. I suppose it boils down to your definition of "available" in "available process." My intent was not to include "pistols at dawn" (for example), but only to recognize civil litigation as a legitimate dispute resolution process. Sometimes it's the process that fits.
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