While it is true that some of the ADR movement stemmed from “grassroots” initiatives directed at respecting the needs of participants in social conflict, much of it was characterized by a move away from the adversarial model employed by the legal profession. Legal reformers conveyed their language of dissatisfaction with formal structures and criticized the legal process for being fundamentally alienating. In Canada and the United States, crime was seen not merely as a breaking of laws, but also as damaging human relationships. Alternative dispute resolution programs in both countries had many similar features:
Two types of actors supported the development of ADR. On the one hand, community activists espoused the potential for individual and collective empowerment. The Central Mennonite Committee, the Quakers, the Jewish Conciliation Board, and the YMCA each played important roles in the establishment of informal justice programs. On the other hand, legal reformers, faced with problems of legitimization and a dysfunctioning system, saw ADR as an answer to some of their administrative problems. Legal reform also suited the decentralization interests of the government. In the United States, the legal sector was very influential in the development of ADR. That influence continues today. For instance, in 1978, the American Bar Association formed the Standing Committee on Dispute Resolution; by 1990 there were at least 157 local or state committees. In 1983, the Harvard Law School established a Program on Negotiation and by 1990, ADR courses were offered in 150 of the 175 accredited American law schools (NIDR, 1992). By 1995, there were more than 5000 dispute resolution practitioners known to exist in Canada (Department of Justice, 1995). No doubt that number is much larger today.
Benefits of ADR
ADR was praised for its administrative efficacy. It could offer equal access, act quickly, and allow all citizens to participate in decision making. It was claimed to be faster, less expensive, more accessible and approachable, less coercive and less oppressive, and better suited to tailoring outcomes to the needs of those involved than traditional justice. Informal justice was directed at maintaining relationships, not determining legal right and wrong. It was thought to result in greater satisfaction with resolutions, higher levels of compliance than with adjudicated decisions, and improved capacity for resolving future disputes without external intervention. By using volunteer lay personnel and low-paid paraprofessionals, less formal practices were seen as a means of alleviating the fiscal crisis of the state and problems of overcrowding in courts and prisons.
Today, ADR is increasingly being sought as an administrative solution for an overworked court system.2 This interest is bolstered by the demand for cost reduction by government officials who struggle with declining economies and escalating deficits. In Canada, the Ontario Supreme Court decision in Askov3 put pressure on the province to look for dispute resolution options to reduce court backlogs. In 1994, the Ontario Civil Justice Review was commissioned to develop “an overall strategy for the civil justice system in an effort to provide a more speedier, more streamlined and more efficient structure” (1996:viii). A key component of the 78 recommendations contained in the Commission’s First Report is that courts would adopt the concept of dispute resolution and integrate alternative dispute resolution techniques. After a successful pilot program in Toronto (Mcfarlane, 1995), it was concluded that referral to ADR was cheaper, faster, and more satisfactory. Based on the success of the pilot project, each civil case in Ontario is now mandated to attend mediation before the court will entertain to hear the case.4
Criticisms of ADR
Critics of ADR suggest that it expands state control (Abel, 1982), that it is a product of the changing nature of state power and form of law (Spitzer, 1982), and that it re-legitimizes the formal legal system (Harrington and Merry, 1988). ADR is accused of providing “second class justice”, a complaint based on the fact that a disproportionate number of clients referred to ADR programs are from poor, black, and female groups (Jaffe, 1983; Tomasic and Freely, 1982). ADR is also criticized for creating more institutions of political control than empowering alternatives (Hofrichter, 1987). In addition, there are complaints of legal rights violations, exploitation, coercion, and expansion of state control into private lives (Kressel, et al, 1989). Thus, it is said, only formal procedures, based on rules of evidence, can require compliance with decisions, and only legalism can protect the less powerful (Roel and Cook, 1989). Further, informal practices were faulted for not living up to their claims of reducing the burden and size of the legal apparatus and were accused of widening the net of social control. Harrington’s (1985) work, which pointed out that few of those referred to mediation would ever have had a court hearing, supported this conclusion. Although it was agreed that ADR was more humane, responsive, and participatory, opponents argued that it marginalized certain crimes and did not have any long-range impact on the distribution of power or on the high cost of the legal system.
Other lines of attack saw informalism as augmenting oppression by reinforcing patriarchal and middle-class values. Women’s rights activists express concern that through mediation women may lose their leverage in bargaining and receive less in the way of settlement than would be offered through formal court processes (Rachofsky, 1985; Hart, 1990). They also argue that a more sophisticated understanding of power is required for mediation to serve the interests of women (Shaffer, 1988), and that mandatory mediation is especially harmful to women (Grillo, 1991). Informal dispute resolution processes were believed to suppress social conflict through the rhetoric of harmony ideology (Nader, 1991). ADR was accused of being susceptible to domination by stronger parties, and programs were criticized for diverting resources and attention from needed court reforms. ADR was deemed inadequate, and despite its flaws, the court system was said to remain the best provider of justice.
While the ideals of ADR may not have been fully borne out, it is fair to say that in a relatively short period of time, alternatives to the traditional trial have become a significant factor in modern day dispute resolution. As ADR continues to grow in popularity, advocates will no doubt continue to seek to improve its procedures and techniques.
Of all of the ADR processes, mediation has received the most attention and is said to have emerged as the single most powerful tool in the alternative dispute resolution movement (Bush and Folger, 1994).
Restorative Justice
Restorative Justice is the popular name given to recent approaches to justice that aim to involve all those directly affected by a crime in such a way that the outcome seeks healing and reconciliation rather than retribution. Examples of these approaches include community sentencing circles, family group conferencing, and victim-offender mediation programs. Sentencing circles allow court officials, victims, offenders, community elders, and other community members to discuss together the impact of the crime and explore ways of dealing with the aftermath. Restitution and reintegration are high priorities. Family group conferences involve a trained facilitator to help victims and offenders and their families along with professionals, such