A Word on "Why Isn't ADR More Popular"
As I understand Alternative Dispute Resolution, it refers to methods or processes for conflict resolution other than the judicial system. Being interested in the topic, I have discovered that entering the world of social media has led to reading the vast array of thoughts in regards to this type of practice. There is a very interesting discussion in the Linked-In group ADR, Conflict Resolution and Mediation Exchange addressing the question of “Why Isn't ADR More Popular?” The source for this question is an article at http://www.pon.harvard.edu/daily/mediation/are-you-overlooking-mediation/ titled “Are You Overlooking Mediation?”
The reason most often cited is the perception that the court is the venue for resolving disputes. One person wrote, “people become biased believing their perspective is the right one and therefore believing they will win if given a chance in court.” Another comment suggests the reason lies within our national culture “that far too often one wants to reach for a gun.”
Two other comments take aim at the mediators. As one person commented, “there are a lot of awful mediators running around out there undermining the credibility of the rest of us.” (Does this mean that by reading the comment I am one of “us” and therefore not one of those awful mediators?). Although not responding directly to the previous comment, it is suggested that mediators must develop soft skills and relationship skills as one of the ways to advance the field.
Next is the observation that “most people would not like to throw themselves into a mediation setting to ‘negotiate by themselves.’” True, but there are other processes to consider where the parties negotiate with advice, counsel and, dare I say, an advocate in their corner. Think collaboration!
Finally and coming as no surprise, the finger is pointed at the lawyers. “I don’t see enough lawyers embracing ADR with courage and enthusiasm.” However, as postulated in the book Freakonomics, it is all about incentives. What is the economic incentive for a practitioner steeped in the litigation process, whose livelihood depends on the litigation process, to take the time, and therefore the money from his/her current practice? History teaches us that the skepticism, if not outright hostility, of experienced practitioners with successful litigation businesses should be expected (thereby creating opportunity for others). This very interesting topic is beyond the scope of this note.
There is much validity in all of these responses and each one provides some insight into an enormous challenge for ADR, which is Alternative Dispute Resolution. What puzzles me is why are these alternatives? OK, I am not puzzled; yet a question comes to mind. “What can we do to change perceptions?” There is a long list of options and I am sure people reading this blog are the “early adopters” embracing a multitude of pathways to resolution and working to spread the word. But wait, what is the “word” and how can it be spread?
Surely we have all heard the phrase words are powerful. Among the many comments on this topic was a question that might get us started – What is Appropriate Dispute Resolution. A commenter answered, “Janet Reno is credited with having coined that phrase. Her reasoning is that processes like mediation should not be considered alternatives but viable options. She said we should look for the appropriate method, not consider litigation THE method with all the others as alternatives. When we get to that place collectively - where we know as a society that there is no one-size-fits-all method of dispute management AND when faced with conflict there are options besides avoid and combat then this will all be mainstream.” Politics aside, I think Janet Reno was on to something. Although not explicitly stated, it is readily apparent the word alternative is an albatross we must break loose from. If alternative is interpreted as a possible or remaining course or choice, the weight of the word becomes obvious. As practitioners of conflict resolution we have options to consider based on the circumstances. The challenge we confront is how to recommend the appropriate method, not an alternative to … and that (may be) the word.