Building a Pedagogy of Problem-Solving: Learning to Choose Among ADR Processes

Abstract

This essay outlines two areas in which ADR and the pedagogy of ADR remain deficient. The first area is counseling. I argue in this essay that without better counseling prior to, during, and after engaging in ADR processes, the promise of ADR has not been met.

The second issue is the type of counseling and advice that does exist regarding ADR. While ADR proponents argue that ADR makes clients happier, there has not yet been much thought given to analyzing the different potential emotional impacts of the various ADR choices. When we choose and counsel among the ADR processes, we need to address the emotional impact of these choices in addition to the financial and legal ramifications. The theory of therapeutic jurisprudence and preventive law can be brought into this counseling aspect in order to make better choices among the ADR processes.

After discussing the issues above, the essay concludes with a model for advising among the ADR choices. In the final section of this essay, this model is applied to a case study, The Daily Bugle, used by the major ADR textbooks to outline the choices among the ADR processes.

Keywords: negotiation, dispute resolution, therapeutic jurisprudence, preventive law, counseling, pedagogy