Week 3 - History of the ADR Movement and the Evolution of Third Party Roles –
reading
Dispute processes– Chapter 2 pg 9-77
Introduction
ADR emerged in the latter part of the 20 th century. Before this period, the lawyer and judge
had emerged as central figures in the dispute settlement process. Co-option by government,
large business interests and expansive professional agendas helped the movements growth.
There is necessary tension between formal law and justice. Disputing institutions are
supposed to secure outcomes that go beyond providing remedies for the parties. Auerbach –
rejection of legal processes is an attempt to instil a sense of community.
Ideals of informal justice
Informal justice contains some identifiable core elements which involve the development of
institutions and processes that are:
-non-bureaucratic relying on small local for a
-local in nature relying on local language
-accessible to ordinary people
-reliant on lay people as third party interveners
-outside immediate scope of official law
-based on flexible and vague substantive and procedural rules
-intent on promoting harmony between parties within local communities
Centralised legal systems follow formal justice and emphasise:
-specialised bureaucratic mechanisms differentiated from society in order to be independent
-professionals with expert knowledge
-impartial and publicly available official law
-clear and fair procedures
-court able to compel parties to accept the authority of the state
The establishment of formal justice
Provision of dispute resolution mechanisms has historically been bound with the ambition of
those in power.
Pre-imperial china – 3rd century BC, there existed legalism which was in part created as a
reaction to the Confucian way of thinking which emphasised harmony, moral leadership,
education etc. Once legalism emerged, there was a divergence in schools of thought legalism
v Confucian. Legalists appealed for a strong centralised state with comprehensive codes and
rigorous administrative hierarchy of courts. The rules were to be clear and comprehensible
and applicable to all. Confucians believe that the formal law approach encourages parties to
be adversarial and strategically pursue their rights at the expense of substantive justice.
Roman state – theocracy where legal matters were put to a college of pontiffs as a judicial
council. When Rome became a Republic, the law of the Twelve Tables was enacted which
reflected a desire to demarcate the boundaries of self-help and stipulated procedural
requirements for individuals wanting to settle their disputes.
,England – Henry II established a system of national courts with broad powers of jurisdiction
operating in a bureaucratic manner appointed by the King. The older system involved large
groups of suitors who would make decisions on disputes and performed this function because
of their tenure on land and not because of the King.
The colonial states monopolised criminal prosecutions and introduces western style civil
justice for more important larger disputes. The colonial state allowed matters of customary
law to be settled outside of ‘court’ in more traditional based processes which often
emphasised negotiation and mediation.
Jeremy Sarkin – use of the tradition gacaca courts was adopted by the Rwandan government
to ease burden on the normal courts. Members sit on the grass and listen, it is a form of
community dispute resolution that is cheap and accessible. Respectable community figures
serving in these courts are able to observe the proceedings ensuring trust and legitimacy in
the system.
The religious impulse towards informalism
The emphasis here was to deal with troubling situations within the community without state
involvement. Sectarian organisations use these methods to solve their dispute outside of
organised society which they perceive to be deeply flawed and corrupt. Community rules
may even bar members from recourse to state courts.
Auerbach - Puritans believed that any differences must be mediated by members and not
consigned to lawyers. The dispute settlement framework must be communal and not
individual so that Zion can survive.
The political impulse towards informalism
Close association between the state and formal justice and its control by the ruling classes
forces others to create alternatives to dispute resolution. The development of socialism
encouraged ideas of informalism which encouraged the creation of dispute resolution
methods that would encompass the will of the masses and not just the bourgeoisie. The
Chinese Communist Party in 1949 sought to create a socialist system of justice which was
adapted to local Chinese conditions.
The ethnic impulse towards informalism
Ethnic minorities have felt the need to enjoy a degree of control over their own affairs. E.g.
Chinese-American communities whose dispute mechanism is more person-directed rather
than act-directed.
The occupational impulse towards informalism
There is a preference for self-governance within various kinds of economic institutions that
tends to encourage specialised models of dispute resolution. The urban guild was an
association where members engaged in the same line of commerce/craft who joined together
in order to protect members’ businesses from outside competition and control their conditions
of business. Disputes impeded business/production so needed to be dealt with quickly.
Auerbach – a government agency known as the Freedmen’s Bureau was established to
supervise and support the transition from slavery to freedom, but it encountered a large
number of civil disputes between former slaves and slave masters. The Commissioner
proposed a three-man arbitration tribunal for labour-contract disputes. A bureau agent would
, represent the government, the freed slaves would choose their representative. Freed slaves
continuously picked one of their own to represent them and this angered the farm owners
until the commissioner enacted rules which forced their replacement. He argued that this
would mollify the planters which would in turn cause them to be kinder to freed men.
Howard believed in formal equality and paternalistic justice. Planters tolerated the arbitral
tribunals as long as they controlled them. Informalism in a social setting of disparate power
relations only served the interests of the dominant group.
Territorial identity and the impulse towards informalism
Informalism in this context aims to create a sense of identity between the individual and the
local community and empower the local people. The greatest critique of informalism is that
this move towards alternative methods of dispute resolution do not improve the position of
the disadvantaged party but entrenches inequality and increases opportunities for coercion
and manipulation.
Merry & Milner – Community mediation in the 1970’s and 80’s aspired to build a justice
system under the authority and normative order of the community rather than of the state.
These programs often sprang from neighbourhood policing and watch efforts and criminal
justice reform movements. They promised to empower ordinary people by giving them
control over their own conflicts.
The San Francisco Community Board’s ideology focussed on the capacity of popular justice
to embody community power and express community values. It applies conciliatory
procedures to a range of family and neighbourhood problems. Sometimes the process
provides for breakthroughs while other times it is manipulative and formalistic.
Lubman – Communists infused into mediation the criteria of right and wrong rather than
allow mediation to seek compromise. The political functions of mediation in this context
often overshadow the settlement function. Communists have used mediation as a way to
mobilise party support and implement policies.
Auerbach – the neighbourhood justice centres were sponsored by the DoJ and are located
within the judicial system. Referrals came mostly from judges and prosecutors who wanted to
divert these disputes. A study of a town called Dorchester in Boston which used this new
justice centre revealed that district court personnel deprived the mediation tribunal of an
independent existence. The new system did not attract disputes independent of referral from
the judicial system.
Movements for legal reform and informalism
Roscoe Pound argued that the adversarial approach to justice discouraged disputants from
making concessions on the basis of shared values. Reform of the court system by introducing
chambers dealing with specific kinds of disputes made it more socially responsive.
Auerbach – Conciliation and arbitration were touted as speedy, inexpensive and alternatives
to formal methods of dispute resolution. Conciliation was designed to resolve claims of poor
people who could not afford lawyers but arbitration preferred commercial interests for self-
regulation without the intrusion of lawyers. Conciliation was therefore neglected as
arbitration flourished. Conciliation was voluntary and formless and encouraged disputants to
compromise on their differences.
Temporal dimensions
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