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The Death of ADR: a Cautionary Tale of Isomorphism Through Institutionalization

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The Death of ADR: a Cautionary Tale of Isomorphism Through Institutionalization Volume 108 Issue 4 Dickinson Law Review - Volume 108, 2003-2004 3-1-2004 The Death of ADR: A Cautionary Tale of Isomorphism Through Institutionalization Douglas Yarn Follow this and additional works at: https://ideas.dickinsonlaw.psu.edu/dlra Recommended Citation Douglas Yarn, The Death of ADR: A Cautionary Tale of Isomorphism Through Institutionalization, 108 DICK. L. REV. 929 (2004). Available at: https://ideas.dickinsonlaw.psu.edu/dlra/vol108/iss4/2 This Article is brought to you for free and open access by the Law Reviews at Dickinson Law IDEAS. It has been accepted for inclusion in Dickinson Law Review by an authorized editor of Dickinson Law IDEAS. For more information, please contact [email protected]. I Articles I The Death of ADR: A Cautionary Tale of Isomorphism Through Institutionalization Douglas Yam* I. Introduction A. A Tale of Capitulatingto Routine Once upon a time, people sought to avoid the courts and turned to an alternative to litigation. Third parties selected by the disputants would bring the principals together and urge them to reconcile. The disputants mutually shaped the process and agreed to the ultimate outcome. People far and wide spoke of the wisdom of this process, how it reduced hostility, reconciled adversaries, promoted community, and produced efficient outcomes. The government supported it because it was more effective in promoting peaceful relations than what the * Professor of Law, Georgia State University College of Law. J.D., University of Georgia; M. Litt., University of Cambridge; B.A., Duke University. Professor Yam is the Executive Director of the Consortium on Negotiation and Conflict Resolution, a multi-disciplinary, inter-institutional, theory-building program, which focuses on the problems of institutionalizing conflict resolution mechanisms. Portions of this Article are part of a more extensive work in progress on the death of ADR. PENN STATE LAW REVIEW [Vol. 108:4 government could provide. The commercial community, who found the courts to be inefficient and inattentive to their specific needs, began to adopt and adapt this alternative. Before too long, the courts got involved and began using the process to divert cases it couldn't or didn't want to handle. The alternative thrived in its newfound role as an efficient means to resolve commercial disputes and as a legitimate institutionalizedpartner of the legal system, but there was trouble on the horizon. Observers began to question the fairness of its use. Some lawyers found the alternative threatening because it seemed antithetical to the accepted role of the adversarialsystem, and others began to view this alternative as an opportunity to gain tactical advantages in litigation. Courts and policy makers began exercising more oversight and control over the process. Eventually, disputants found that the alternative was growing more and more similar to, if not sometimes indistinguishablefrom, the adjudication for which it was meant to substitute. While its use had become pervasive in society, the alternative was dead as an alternative. Disputants had lost control over the process, which no longer seemed as effective in reducing hostility, reconciling adversaries,promoting community, and producing efficient outcomes as it was once upon a time. This tale sounds as if it is about the state and possible fate of mediation in the United States at the end of the twentieth and beginning of the twenty-first centuries, but it is not. It describes what happened to arbitration in England from the tenth to the late nineteenth centuries. This Article tells an historic tale of a dispute resolution process capitulating to routine. It is the story of how arbitration evolved from conciliatory into adjudicative, as it became increasingly institutionalized within the English legal system over a thousand year period.' It does not purport to discuss comprehensively English arbitration law and practice, but rather to review through the lens of legal history how various dispute processing traditions shaped the arbitral process. As such, it provides a unique perspective from which to analyze how the ethos of a conciliatory process can be lost in a relationship with an adversarial process promoted by a powerful legal system. It is a story of cultures and traditions in collision, one emphasizing compromise and private norms, the other emphasizing rights and law. It serves as a cautionary tale of isomorphism through institutionalization that deserves some consideration. 1. I stumbled upon the tale while traveling to Long Melford, Suffolk, England, in 1988, on an ancestral tour. The brass on an ancestor's tomb, dated 1446 A.D., translated from the Latin: "He delighted to bind the quarrelsome with the love of peace." I was intrigued by the notion of fifteenth century mediators, so I set out to unearth the story. 2004] THE DEATH OF ADR The Article is divided into two parts. The first part discusses the use of arbitration in England as a conciliatory process and its decline. The second part describes the transformation and rise of arbitration as an adjudicative process and the consequent effects on arbitral practice. Although analogies to the current trends of institutionalizing Alternative Dispute Resolution ("ADR") in American courts will be painfully obvious to many readers, the conclusion in the form of a post-mortem briefly recaps some of those analogous themes as they apply to modern mediation. The remainder of this introduction provides some important definitions and distinctions as well as the historical perspectives that define a starting point for analysis. B. Definitions and Distinctions Some definitions and distinctions are essential to understanding the tale and its contemporary implications. When I refer to the "death of ADR," I mean the death of "alternative dispute resolution" as opposed to "appropriate dispute resolution." The emphasis is on "alternative." While the distinction may seem obvious now, it is likely to become less so in subsequent years. Many leaders in the ADR movement have encouraged using the term "appropriate dispute resolution," which encompasses litigation, thereby putting all the primary dispute processing' mechanisms on an equal footing rather than having them distinguished from litigation, a distinction that may risk their being labeled as second-class or undesirable.3 Most importantly for purposes of this Article, "alternative" implies choice, not only a choice between litigation and another dispute resolution process, but also choice to the extent the word connotes voluntary participation and party control independent of the dictates of the judicial system. In this Article, ADR includes "ways in which a society with a 2. In this Article, variations of the phrase "dispute processing" are generally favored over "dispute resolution" or "dispute settlement." The term "dispute processing" is borrowed from William Felsteiner, Influences of Social Organization on Dispute Processing, 9 L. & Soc'Y REv. 63 (1974). As Felsteiner points out, settlement or resolution is often not the object of the exercise, nor is it always clear whether or not a dispute has been settled; the dispute itself may never be clearly defined. 3. DICTIONARY OF CONFLICT RESOLUTION 26 (Douglas H. Yarn ed., 1999) [hereinafter DICTIONARY]. In her address to the 1996 annual meeting of the Society of Professionals in Dispute Resolution (SPIDR) in Anaheim, California, Attorney General Janet Reno announced that "ADR" today means "appropriate dispute resolution." Ironically, this statement and the accompanying trend encouraged by SPIDR leadership of substituting "appropriate" for "alternative" is symptomatic, as well as symbolic, of the general assault on the independent ethos of ADR. The notion of "appropriate" also raises the proposition that a crucial challenge in dispute resolution is matching the appropriate process to a particular problem. PENN STATE LAW REVIEW [Vol. 108:4 formal, state-sponsored adjudicative process prevents, manages, and resolves disputes without using that process."4 Generally, the term encompasses any conflict-handling procedure that has as its goal avoiding the cost and delay of litigation, relieving court congestion, providing a more "effective" or constructive resolution between disputants, enhancing community involvement in the process of resolving disputes, and facilitating access to justice.5 In order to advance these goals, ADR procedures usually are characterized as voluntary, informal, private, fast, and inexpensive. They tend to de-emphasize the adversarial method by discouraging lawyer participation, judicial involvement, and the application of substantive law, and by encouraging party participation.6 Of course, the best known examples of ADR mechanisms or processes are negotiation, mediation, and arbitration. The latter two involve third-party intervention. For purposes of this Article, an important distinction between processes in which third parties intervene is whether the process is "conciliatory" or "adjudicative." 7 A critical factor in making such a classification is whether or not the third party has the power to impose a solution. If so, the process is adjudicative; if not, the process is conciliatory. Mediation is a conciliatory process. Its aim is to achieve the settlement of disputes by adjustment or compromise among the claims, interests, and demands of the parties. "Compromise" implies participation and choice in the resolution, which by implication will provide something for both disputants-a "bicentric" solution.
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