Archive for the ‘Litigation’ Category


Tuesday, August 14th, 2012

Some folks in my line of work think that “collaboration” is an ultimate and absolute value. Nuh-uh. Sometimes it’s time to call it. The best thing for some people in conflict may be to disengage.

My wife worked for an airline owned by a person who was larger-than-life. (more…)

Court as a Thing to Stay Out of

Tuesday, August 7th, 2012

A colleague posted that she just finished writing her awards as an arbitrator in two cases. “At least they stayed out of court” she said.

The choice to arbitrate reflects the particular belief that court is a thing to stay out of.

People like me have been motivated to provide alternatives like mediation because of our dissatisfaction with the court system. We just don’t think that the adversarial process the court uses is best for everybody. It’s geared toward someone else making a decision that’s then imposed on the parties. Instead, mediation is a collaborative process; the parties make their own decisions about how to resolve their disputes themselves.

But the choice to arbitrate, based on a belief that court is a thing to stay out of, says much more than that. It goes deeper than that. And it’s more damning than that. (more…)

Mediation isn’t Mediation

Wednesday, April 28th, 2010

A lot of folks don’t know that there is more than one form of mediation.  That includes a lot of lawyers.

To be clear, there’s mediation and then there’s mediation. They are as different as night and day.  Wished we used different words for them, but we don’t.  But there is a clear distinction. Here it is: (more…)

Lawyers Choosing Mediators: Is that All There Is?

Tuesday, April 27th, 2010

The traditional way lawyers choose mediators is understandable.  You choose someone with a bunch of experience in the subject matter. No one can fault you later for choosing someone who has “seen it all before.”  Even if you don’t reach agreement. You’re safe.

There are limitations with that approach.  Here’s what I mean. (more…)

The “Alternative” in ADR

Thursday, February 26th, 2009

A bar association group with which I’m involved was called the “Dispute Resolution Section” for a time.  It recently renamed itself the “Alternative Dispute Resolution Section,” as it had been called when it began years ago.  ADR Section becomes DR Section becomes ADR Section again.

How come?  What do we mean by “alternative?”  Why is it important for some to call it that?  Why is it important for some not to call it that?

Within the community of those who work in processes other than litigation, it’s now more commonly called just “dispute resolution.”  (Though some groups are avoid changing their acronyms by changing the “alternative” to “appropriate.”)  It is more often within the legal community that we hear it called “alternative” dispute resolution.

The concept of an alternative only makes sense within the context of being an alternative to something else.  Here, that referent is unstated, but implied and clear.  It’s pretty well understood that when we hear “alternative” we know what’s meant is “alternative to litigation.”

Litigation is the dominant paradigm in our society for approaching disputes.  It’s not the most used, of course, because it’s priced beyond the means of so many people.  But it is what most of us think of first when we think of conflict.

The term “Alternative Dispute Resolution” stands firmly in a narrative viewpoint centered on litigation, law and lawyers.

Yet to describe the full range of all the methods that human beings can use to approach their disputes as  “alternatives” to litigation seems to be missing something important.  It glosses over the essential characteristics of both litigation and its “alternatives.”

To get at those essential characteristics just stand the concept on its head.  I will at times provocatively describe litigation and the legal system as ADR — as the alternative to people working out their resolutions to disputes themselves.

Maybe, at this point, still, some 30+ years into the development of ADR, the easiest way we can describe what we do is that it is “not-litigation.”  But being fixed in a particular narrative vantage point limits our thinking.  It’s like calling the ocean “not-boat” or the vast reaches of the cosmos “not-earth.”

What is the essential nature of litigation?  What is the essential nature of each of the other dispute resolution approaches?