Think DSD, Not ADR

Abstract

This article argues that it is time for a paradigm shift in the way we define the alternative dispute resolution (ADR) field. It suggests that the dispute system design (DSD) paradigm should succeed ADR. ADR is an ever-expanding collection of distinct dispute resolution procedures. By contrast, DSD offers a relatively fixed set of concepts and procedures that can be applied in virtually any context.

There is a lack of consensus about the name and definition of ADR, which reflects deep conceptual problems. Moreover, the conventional conception of ADR omits lawyer-advocates, litigation, and judges despite the fact that litigation and modern ADR processes are inseparably intertwined. Using a DSD frame avoids the illogical and counterproductive exclusion of lawyers and judges from the “ADR” field.

Although DSD generally is used by large organizations, individual practitioners and small practice groups also use these procedures. Indeed, ADR practitioners routinely do DSD whether they know it or not.

Reprinted with permission from the
New York State Bar Association © 2023

Keywords: alternative dispute resolution, ADR, dispute system design, DSD, litigation, lawyers, judges, paradigm shift