I. Introduction
The Alternative Dispute Resolution (ADR) movement can be traced to the 1960s, and particularly to the US. It is associated with dissatisfaction with the role of the state, and with the role of state institutions, in dispute resolution.2 Legal machinery was seen as particularly inappropriate to resolving issues that are really economic, social or political problems.
ADR offers parties to disputes greater autonomy by letting them decide the method, means and rules of dispute resolution. Most common law jurisdictions have placed increased emphasis on ADR, particularly mediation. In England and Wales, as elsewhere, this has been instead of, or as an adjunct to, litigation.There may be a number of reasons why alternatives to litigation tends to develop. The first field of activity is often commercial. This may be a reaction to the fact that commercial disputes are likely to be complex and involve multiple parties. There may be higher levels of interdependency between parties and issues.3 Conventional litigation is often considered too ritualised and slow.
ADR processes can be tailored to a variety of conflict types, disputes or parties.4 Indeed, by the end of the 1980s, ADR was seen as part of a social and political
1HL Mencken, ‘Editorial’ American Mercury (January 1928) at 35, 36.
2 LA Mistelis, ‘ADR in England and Wales: A Successful Case of Public Private Partnership’ in NM Alexander (ed), Global Trends in Mediation (The Netherlands, Kluwer Law International, 2006) 139, at 143.
3 DP Emond, ‘Alternative Dispute Resolution: A Conceptual Overview’ in DP Emond (ed), Commercial Dispute Resolution: Alternatives to Litigation (Aurora, Canada Law Books Inc, 1989) 1, at 14.
4 P Gulliver, Disputes and Negotiations: A Cross-Cultural Perspective (New York, Academic Press, 1979); WF Felstiner, RL Abel and A Sarat, ‘The Emergence and Transformation of Disputes: Naming, Blaming, Claiming’ (1980-81) 15 Law and Society 631, esp at 640-41.
movement towards ‘informalism’ and subject to a more rigorous critique.5 During the following decade ADR was adopted by the state as a cheap alternative to litigation. Critics argue that this undermines and compromises the considerable advantages of ADR.
The growth of ADR raises many issues for legal regulators and for lawyers. If ADR represents a change in the form of legal business, lawyers must decide whether they should offer ADR services. Legal regulators then need to consider if the provision of services needs to be controlled, and if so, how. The decision may have implications for education and training and for professional ethics. One issue that needs to be considered is how far an ethic based on adversarial assumptions can accommodate a competing ethic of co-operation and conciliation.
II.