Beyond Settlement: Reconceptualizing ADR as “Conflict Process Strategy”

Abstract

“Alternative dispute resolution” or “ADR” has reached a paradoxical moment: it is both ubiquitous in practice and at risk of extinction as a distinct concept and field. As the ADR field nears middle age—nearly fifty years after the Pound Conference of 1976—“ADR” has become so popular in name, fractured in practice, and jumbled in theory that it risks a metaphorical genericide, a concept in trademark law when a product name is used to refer to so many things (incorrectly) that it becomes “generic” and confusing. Analogously, the name “ADR” has been applied to so many different processes and concepts that its meaning has become muddled and unifying theoretical principles and governing norms diluted. Over time, ADR has become everything and nothing in particular.

This article reflects on the history and future of ADR in modern legal thought and education. Part I examines what ADR is, and equally important, is not. It seeks to clarify some existing points of confusion about “ADR” that arise, in part, from the three words that comprise our abbreviation. Part II examines where ADR fits within law and legal education, applying lessons from the “Legal Process” movement popular in the 1950s. Situating ADR under the broader unifying frame of “process theory and strategy” may serve to better define the field and guide our collective scholarly and teaching agenda into the future.

Keywords: adr, alternative dispute resolution, settlement, negotiation, mediation, legal process