ADR: Incremental Reform or Radical Change?

Whether some problem requires radical change or incremental reform is a familiar tension in law and life. Should we abolish prisons, for example, or should we seek to improve them? Is cold-turkey best for drug addiction, or is a phased approach more effective? Does it make more sense to repeal the Second Amendment than to press for better gun regulation? Given the serious concerns around plea bargaining, should we ban the practice (and force all cases to trial) or provide more support to those involved?

At stake in these debates is how to make things better, given our abilities and resources, without jeopardizing progress or other things we value. Conventional wisdom tends to push us toward more conservative, incremental reforms. We don’t want to “throw the baby out with the bathwater,” or make “the perfect the enemy of the good,” or “lose sight of the forest for the trees.” At the same time, we know that small reforms may make us feel like we are doing something without actually accomplishing anything significant. Experience shows that sometimes bold action is required to disrupt dysfunctional patterns of discourse and power, even if the goals of that action are not perfectly realized.

In the ADR community, the tension between radical change and incremental reform has always been present. The modern ADR movement, after all, could be thought of as a radical change to how people thought about disputes and dispute processing. (I’m leaving arbitration out of “ADR” for the moment, although clearly it too has worked many substantial changes in the dispute resolution and legal landscapes.) Instead of parties bringing their case to a neutral decisionmaker in an adversarial public setting governed by a set process, parties would come together privately and seek to resolve their dispute to their own satisfaction. On this view, justice is not imposed by an external, “objective” authority but instead is created, as a matter of local agreement. Setting aside the implementation problems associated with this vision of ADR (e.g., power disparities), it seems clear that ADR represents a radically different approach to thinking about and dealing with human beings in conflict.

Of course, another view of this history may conclude that ADR, for all its transformative rhetoric, is primarily the tool of incremental reform at best. ADR stresses the importance of the unique, the private, the specific, and the individual. Many ADR processes and outcomes are driven by the preferences of the participants and occur in settings protected by confidentiality. The goal, after all, is self-determination and informed consent, between and among the parties. There is no precedent generated from agreements binding outsiders. In fact, there’s often the opposite of precedent (whatever that might be), because many agreements made in ADR processes are protected by non-disclosure provisions. Thus the regulatory function of litigation–that is, its capacity to affect future corporate and individual behavior through public trials and precedent–is not present in most ADR. If parties are pursuing their specific disputes in private contexts, then even if these disputes are part of larger social, institutional, or political conflicts, the approach is incremental.

Indeed, critics have long said that ADR prioritizes peace at the expense of justice and, by providing individual complainants with short-term specific relief, may prevent necessary conflicts (“necessary” in the sense that they will push us toward positive and lasting change) from developing. In other words, ADR’s focus on specific disputants and disputes may tend to preserve the status quo and make truly transformational and large-scale change more difficult.

Yet what appears incremental in the short term may lead to radical change over time. That is, by encouraging people to take control over their disputes and address them as autonomous beings capable of deciding what is fair in a given situation, we are working a radical change to the legal and social fabric. On this view, people confronting their disagreements in constructive, specific, and interest-driven ways is a sea change that will, over time and in the aggregate, change how people resolve their disputes and think about others. Without a more autonomous and inclusive approach to dispute resolution and dialogue, people too often think of themselves as passive beings possessed only of their own opinions and unable to do anything other than defend and argue when they find themselves in conflict. They seek out those who echo their views (online or in the media or as companions), which allows them to remain hunkered down in their positions. They underestimate the value of democratic process (voting, participation, dialogue) and believe that listening is a sign of weakness.

Why does this question of radical-change-or-incremental-reform matter? Well, given the kinds of conflict we face today–for example, conflicts that call into question the status and dignity of individuals and groups–we must ask whether and how alternative methods can be effective. Non-ADR types have already “weaponized,” in some respects, some ADR principles and rhetoric. (Recall, for example, Trump’s “good people on many sides” comment after Charlottesville.) Those of us in dispute resolution must be mindful of how we think about and deploy our commitments to dialogue, negotiation, participation, restorative justice, peace-building, and so on in the current moment. Are these commitments correctly calibrated to what we want to achieve and how soon we want to achieve it? If we believe that radical change is necessary in some situation, for example, can or should we use ADR to push for that change? If so, how?

In the short term, and to repeat something I’ve written about before, I believe we must think about adding additional subjects of study and practice to alternative dispute resolution–namely, those skills and theories associated with activism and resistance. These subjects are arguably part of the “alternative” in ADR, given that they are outside formal or traditional legal process, legislation, and litigation. Activism and resistance are in significant tension with much of our work in ADR, such as negotiation and mediation. Yet they still seem to me to be important modes of interaction for alternative skillsets, and it will be useful to talk more deeply about the impact that these modes may have on our field.

In the longer term, I hope we continue to have conversations (as we do on the listserv sometimes) about how we think about and manage disputes and conflict in the current moment.

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