Does the growth of informal ADR processes represent a legitimate expansion or contraction of the state’s control of disputes?

1. Introduction

Informal legal institutions which form Alternative Dispute Resolution (ADR) have a crucial role of neutralizing conflict before it can grow to state or capital threatening levels[1]. Ordinarily, the formal legal system which is represented by the court and judicial system in the UK jurisdiction and in general every democratic jurisdiction plays the same role. This therefore raises the concern whether these informal legal institutions pose a threat to the formal legal system or otherwise. This essay seeks to determine whether ADR serve to expand or constrict the formal legal system. This will be done through review of relevant literature and case law examples.

Informalism forms the foundation for ADR to social legitimacy as a credible means of resolving disputes.  However, whilst the meaning of neutrality is necessarily constructed from its enmeshment within contexts of partiality,[2] in the context of mediated ADR its role is far from clear.  Whilst there is a broad extant consensus that neutrality constitutes the norm for mediator input and therefore the measure by which power relationships between disputant parties are monitored,[3] the lack of perspicuity with which neutrality is understood cases a problem in its ability to regulate and rectify power imbalances that threaten the fairness of mediation outcomes.  The folklore of informalism, as Cobb, Rifkin and Millen refer to these underdeveloped accounts, in fact operates to mystify the role of neutrality and obfuscate the operation of power relations in mediation.[4]

In the UK jurisdiction, an example of ADR is the Employment Tribunals (ETs), which are judicial entities that have the role of adjudicating disputes from the employment sector as well as disputes that are related to employment. Normally, the parties in the ETs are employees, employers, and potential employees. These bodies manage various disputes by workers for example breach of contract by employers, unfair dismissal, unlawful deductions from salary or wage, payment redundancies and six strands of discrimination[5]. The process of dispute resolution with the ET starts with an aggrieved employee or employer submitting an ET1 form where they set out the details of the case. The respondent has 28 days to respond by completion of an ET3 form after which the case is reviewed by the employment judge who then issues written directions or sets out a case management decision (CMD) which manages the case to an hearing[6].

Even though the method of delivering justice is slightly deferent from the formal court judicial system, eventually ADR processes deliver justice that the parties involved are comfortable with[7]. Additionally, the entire judicial process is similar and comparable to the formal judicial system where each party is given adequate and humble time to participate in the process. As noted by Mack[8], the primary distinction between the DR processes and the formal judicial system is the fact that the parties have the opportunity to make their input in ADR and have the decision of the cases done in a way that each party favor while at the same time creating a middle ground.

1. The contested discourse over mediator neutrality and informalism

• The centrality of power ADR

Power in ADR processes can be explained as the capacity of one party to bring to bear an influence on the outcome of the mediation; it is the extent to which a party is able to achieve their goals or satisfy their needs.[9]  To think of power as a quality or property which is possessed by a party would be, however, to oversimplify the way it manifests in the relationships between parties.  It is rather an intangible aspect of the interpersonal dynamic itself:  “Power is not a characteristic of a person, exercised in a vacuum, but is instead an attribute of a relationship.”[10]  Where that power relationship is weighted in the favor of one party to the disadvantage of the other the very terms of partiality in the mediation are skewed.

Examination of the role of power imbalances in influencing the outcomes of ADR therefore brings into relief a clear picture of the challenge facing any account of neutrality[11].  It seems that a workable conception of neutrality must provide some external standard of fairness if it is to not be beholden by the power inequalities inherent in party relationships.  Yet simultaneously, it must not divulge into mere partisanship.

• Impartiality and equidistance

Traditionally, the neutrality element in ADR processes is equated with impartiality in the sense of an ability of the parties to interact with disputant parties without the intrusion of opinions or agendas.  On this account of ADR, the ‘judge’ obligation is to maintain unbiased relationships with the disputants, comporting themselves in a manner which favors neither party[12].  In order to act impartially, the mediator must have a consummate perspicuous insight into their own preferences and opinions. Given the difficulty of achieving this in practice, it is clear that impartiality does fully explain mediator neutrality.  Most crucially, it fails to respond to the aforementioned concern that “[t]reating unqual parties equally results in inequality.”[13]

The second predominant explanation of neutrality in ADR conceives it as equidistance.  On this account, mediators may intervene in proceedings substantively in order to redress the impact of power discrepancies, aiding the weaker party to articulate their “side.”[14]  The mediator aligns themselves with disputants in a partisan manner so as to rectify power imbalances.  Neutrality, construed on these grounds, approximates symmetry through the use of partiality. However, note that equidistance relies on the mediator assuming a position of partiality in relation to the disputants. The challenge of achieving neutrality is the attempt to accommodate three competing thematic concerns of justice, power and ideology[15].

Connected to equidistance is the notion of selective facilitation, whereby mediators in ADR process attempt to redress power imbalances through procedural rather than substantive incursions into the dialogue between parties.[16]  In as much as this model provides that mediators may influence outcomes by creating greater opportunities for the pursuit of their preferred outcome in ADR decisions, it avoids the mediator advocating any substantive position in the dispute[17].  Whilst to this extent selective facilitation offers a preferable account to equidistance by taking a procedural focus, the mediator’s ideology remains the measure for determining what interventions are to be made.

• ADR processes – legitimate expansion or contraction of the state’s control of disputes

The first pertinent observation emerging from the relation between ADR and state control of disputes is largely uncontentious; that neither of the canvassed understandings of ADR processes is in themselves adequate to perform the dual task of redressing power imbalances and preserving the neutral status of the mediator.  Whilst a conception of neutrality as impartiality preserves the plausibility of the mediator’s role as neutral in ADR, and therefore grounds the mediation’s pretense of legitimacy[18]. On the other hand construing neutrality as equidistance relies overwhelmingly on a correlation between the mediator’s ideological inclinations and a broader notion of fairness. To this end, ADR qualify as an expansion of the dispute resolution system.

The second observation builds on the first by suggesting a way in which the bridge between ADR and state control of disputes is constructed.  This observation is that ADR processes conceive their models of operation from the formal state dispute system. As Urwin et al. argues such accounts construe neutrality in absolute terms, supposing that it is either present or absent[19].  This correlation presents a realistic expectation that ADR processes are an extension of state dispute resolution. This picture leaves no room for bringing together the concerns of impartiality and equidistance in the manner suggested as fruitful.  Recalling the tripartite concerns of justice, power and ideology,[20] the problematic effect of the operational model can be demonstrated.

In attempting to accommodate the role of both ideology and power in ADR and formal state dispute control to the fairness restorative justice, civil justice or family law, the similarly and overlapping conception of should be adopted.  It is therefore benefiting to adopt an attitude that looks for certain degrees of neutrality in relation to both power and ideology rather than the satisfaction of strict conditions in informal and formal dispute resolution processes. In as much, this understanding of neutrality should be constructed in “contextual and fluid”[21] terms which decry the possibility of simple categorization.

The shortcomings of explaining neutrality in terms of impartiality and equidistance indicate two key expectations that can be apply to alternate explanations of ADR processes.  Firstly, they indicate that the interests of neutrality in ADR with respect to mediator ideology and neutrality with respect to the power relationship between parties should be brought together into a composite understanding of the mediator function.  Secondly, our understanding of neutrality must be constructed in non-absolute terms which are responsive to the complexities of the social context within which mediation is embedded as is the case with formal dispute resolution.

• ADRs and expansion of dispute resolution

The concepts of impartiality and equidistance both attempt to approximate neutrality by appeal to interests which is the hallmark of ADR processes[22].  For ADR, interests provide the motivation for the mediator regulating their own conduct.  In order to transcend the tension in ADR and promote favorable decision for the parties, it might therefore be advantageous to jettison discussion of interests in favor of focusing on an analysis of the dialogical exchange between disputant parties.[23]

On this account ideology, interests and power in restorative justice, civil justice, or family law ADR processes are understood in terms which descriptions of the world are deployed by parties and mediators to assert primacy and control over the exchange of stories. ADR processes necessarily positions each disputant party in a description which not only defines the problem at hand, but also contains an internal logic which dictates certain normative conclusions.[24]  The consequence of this insight is that the struggle for power between disputant parties and the actions of the mediator are recast as political processes which is the case in formal state dispute resolution as is the case in ADR through which the content of the “dominant” party is contested.

Adopting an understanding of the interrelationship between justice, power and ideology along these lines provides a way of viewing ADR processes in incremental rather than constricting terms.  The expectation of ADR processes as an expansion of dispute resolution is therefore also ostensibly satisfied.  The mediator in ADR processes interventions aim to prevent one party from monopolising the terms of the dominant narrative, which is comparable to the formal state dispute resolution process.  Since the mediator simply creates the opportunity for parties to proffer their own narratives, they cannot impose their own ideology upon the content of the dispute[25].

1. A practical framework for applying ADR

Authors have argued in various places for the necessity of abandoning the quest for a “grand theory” of ADR and the various elements  the processes in favor of a more situated notion.[26]^,[27]  Whilst some authors argue for a situated understanding of the mediator’s role which prioritizes consensuality as the core normative value in ADR processes, it would be appropriate to suggest that ADR processes are applicable to each and every dispute so long as the parties involved are willing to come to the table and strike a middle ground in restorative justice, civil justice or family law.[28] With the guidance of the mediator, parties are able to settle on a decision that favors each, both the respondent and the complainant.

For a seamless application of ADR processes, Richard suggests a meta-level framework that structures the mediator’s function[29].  This framework articulates a set of concerns to which mediators must be receptive and alive to:  Understanding their own perspective; remaining open to other perspectives; valuing non-dominant perspectives; maximizing the control of each party; and actively engaging with power dynamics.[30] Whilst Richard uses this framework to structure ADR process discussion which emphasizes consensuality, the same taxonomy of mediator functions can be used to structure the implementation formal state dispute resolutions.  Indeed, the five enunciated mediator functions seem to be highly amenable to being reframed formal dispute resolution.

These can be restructured and applied following practices in both formal and informal dispute resolutions:  Understanding the role of the mediator/judge’s own preferred narratives; remaining receptive to other narratives; giving credence to non-dominant narratives; maximizing each party’s control over/participation in the dialogical narrative of the proceedings, and addressing disproportionate influence on the mediation narrative[31].

1. Conclusion

ADR processes are used in UK restorative justice, civil justice, or family law in particular in divorce cases and employment cases to provide amicable resolutions between the disputing parties. This essay has analyzed the intractable dilemma that emerges as a result of the use of ADR in light of state control of disputes. By displacing the interest-based notion of ADR, it is concluded that the ADR system in the UK jurisdiction is a complement to the state control of disputes. The system serves to provide easy and amicable resolutions to disputing parties faster, cheaper, casually outside the formal legal system.

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[1] Richard L Abel, (1982)

[2] Lynch, J. (2001)

[3] Kelly, JB. (2004)

[4] Van Veen, D.H., Kreutzwiser, R.D., and de Loe¨, R.C. (2003)

[5] Eurofound, (2010)

[6] Gibbons, M. (2007)

[7] Emery, R.E., Sbarra, D., and Grover, T. (2005)

[8] Mack, K. (2003)

[9] Gibbons, M. (2007)

[10] Ibid.

[11] Smith, J., and Todd, P. (2005)

[12] Emery, R.E., Sbarra, D., and Grover, T. (2005)

[13] Smith, J., and Todd, P. (2005)

[14] Brown, W., Deakin, S., Nash, D., and Oxenbridge, S. (2000)

[15] Genn, H., Fenn, P., Mason, M., Lane, A., Bechai, N., Gray, N., and Vencappa, D. (2007)

[16] Drinkwater, S., and Ingram, P. (2005)

[17] Latreille, P. (2007)

[18] Id at 14

[19] Urwin, P., Chevalier, P.-A., Karuk, V., Latreille, P., Michielsens, E., Page, L., Siara, B., and Speckesser, S. (2010)

[20] Lynch, J. (2001)

[21] Id at 17

[22] Van Veen, D.H., Kreutzwiser, R.D., and de Loe¨, R.C. (2003)

[23] Id at 20.

[24] Emery, R.E., Sbarra, D., and Grover, T. (2005)

[25] Smith, J., and Todd, P. (2005)

[26] Emery, R.E., Sbarra, D., and Grover, T. (2005)

[27] Latreille, P. (2007)

[28] Eurofound (2010)

[29] Richard L Abel, (1982)

[30] Kelly, JB. (2004)

[31] Drinkwater, S., and Ingram, P. (2005)