History and Evolution of Alternative Dispute Resolution (ADR) and Third-Party Interveners | Study notes Immigration Law

HISTORICAL DEVELOPMENT OF ADR & EVOLUTION OF THIRD

PARTY INTERVENER

Historical Development of ADR

Roberts & Palmer – provide an overview of the dispute process from ancient times to today. Various

influences on the development of dispute processes e.g. religious, political, ethnic, occupational,

territorial.

Informal v formal justice - informal = non-bureaucratic, formal = institutions are separate from

society + use experts, publicly available etc.

ADR began in the 1960s in the US due to awareness of the inefficiencies of gov delivering justice,

concerns about access to justice + procedural barriers.

Bush – 70s – increasing problems in court processes, advance of community mediation programs e.g.

SFCB. 1976 – Pound conference where Fran Sander coined term ADR. 80s – evolution into

supporting mediation. Development of ADR came out of civil unrest in the US e.g. racial tensions.

Disputes are to be looked at in terms of their nature and the process most suitable for it.

Roberts & Palmer – movement towards reconceptualization of civil justice. Issue becomes one of

appropriateness of private resolution processes.

Forms: command to self-determination

Austin - law from command, duty and sanction. Customary norms are not laws. There must be a

command, an obligation to follow it and failure to which will result in the imposition of a penalty

(sanction).

Roberts & Palmer – looked at anthropological experience. Ethnographic studies show the ADR

process had been used for a long time. Tanzanian (Gulliver) and Botswana (Roberts & Comaroff)

used a form of community justice that was similar to ADR today.

Command model reduces relevancy of bilateral exchanged of negotiation. Not all disputes are settled

with regard to application of rules and norms.

The traditional model

Adjudicative process is prominent in the western world. Emphasis on TP decision-maker relying on

rules to make decisions.

Primal continuum of processes: bilateral exchange to imposed decision-making

Negotiation – consensual, private, usually confidential, minimal formality, party controlled, direct

communication, voluntary participation, speedy, cheaper than other processes.

Mediation – TP facilitator introduced, consensual, private and confidential, minimal formality,

guided by facilitator, party controlled, direct + indirect communication, voluntary participation unless

legally required to, speedy, cheaper than other processes, creativity to construct and agreement,

contractual outcome.

Arbitration – consensual but adjudicative, impartial, neutral, non-aligned TP decision-maker,

decision-maker appointed by parties, decision is made after hearing parties, rules of process and

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HISTORICAL DEVELOPMENT OF ADR & EVOLUTION OF THIRD

PARTY INTERVENER

Historical Development of ADR Roberts & Palmer – provide an overview of the dispute process from ancient times to today. Various influences on the development of dispute processes e.g. religious, political, ethnic, occupational, territorial. Informal v formal justice - informal = non-bureaucratic, formal = institutions are separate from society + use experts, publicly available etc. ADR began in the 1960s in the US due to awareness of the inefficiencies of gov delivering justice, concerns about access to justice + procedural barriers. Bush – 70s – increasing problems in court processes, advance of community mediation programs e.g. SFCB. 1976 – Pound conference where Fran Sander coined term ADR. 80s – evolution into supporting mediation. Development of ADR came out of civil unrest in the US e.g. racial tensions. Disputes are to be looked at in terms of their nature and the process most suitable for it. Roberts & Palmer – movement towards reconceptualization of civil justice. Issue becomes one of appropriateness of private resolution processes. Forms: command to self-determination Austin - law from command, duty and sanction. Customary norms are not laws. There must be a command, an obligation to follow it and failure to which will result in the imposition of a penalty (sanction). Roberts & Palmer – looked at anthropological experience. Ethnographic studies show the ADR process had been used for a long time. Tanzanian (Gulliver) and Botswana (Roberts & Comaroff) used a form of community justice that was similar to ADR today. Command model reduces relevancy of bilateral exchanged of negotiation. Not all disputes are settled with regard to application of rules and norms. The traditional model Adjudicative process is prominent in the western world. Emphasis on TP decision-maker relying on rules to make decisions. Primal continuum of processes: bilateral exchange to imposed decision-making Negotiation – consensual, private, usually confidential, minimal formality, party controlled, direct communication, voluntary participation, speedy, cheaper than other processes. Mediation – TP facilitator introduced, consensual, private and confidential, minimal formality, guided by facilitator, party controlled, direct + indirect communication, voluntary participation unless legally required to, speedy, cheaper than other processes, creativity to construct and agreement, contractual outcome. Arbitration – consensual but adjudicative, impartial, neutral, non-aligned TP decision-maker, decision-maker appointed by parties, decision is made after hearing parties, rules of process and

evidence are determined by parties, private and usually confidential, decisions are binding and subject to limited judicial review, indirect communication. Litigation – adjudicative, imposed decision-making, formal, rights-based process, depending on party advancing positions, presentation of evidence, neutral, impartial, non-aligned TP decision-maker not chosen by parties, formal rules of evidence + process, public, decisions are judicially binding and subject to appeal Third-party role As you move along continuum, TP role is introduced. Degree of intervention by TP will tell you nature of the TP. Mediation, TP doesn’t control decision + is impartial and neutral but not the same in litigation + arbitration. Arbitrator power comes from contract between parties and arbitrator. Judge however is backed by and derives power from the state. Other TP roles can affect outcome of dispute e.g. adviser/allies. Mather & Yngvesson – analyses how disputes are transformed by TP roles which are not typical e.g. impact of audience and supporters. Sociological literature suggests supports were interested in keeping the focus on the community and not the parties. Quotes Robert A. Baruch Bush, “Staying in Orbit, or Breaking Free: The Relationship of Mediation to the Courts over Four Decades” (2008)  Mediation first seen as servant of court but now established as own separate process o 1960-70: mediation used to channel cases out of court o 1980s: mediation instrument for community, private ordering and reconciliation o 1990s: court embrace mediation as case management tool o Late 1990s-today: breaking away from court orbit, goal of generating insight, understanding + transformation  Emergence of different typologies of mediation models helped it break away from court satellite  Models showed mediation served goals beyond settlement e.g. transformation  Transformative med not measured by settlement rate so won’t be pulled back into court orbit  Studies in 80s showed mediators applied pressure on parties to settle  Mediation was ‘directed problem solving’ with mediator driving parties towards settlement  Move in 1988 in Florida to have court referred mediation and requiring lawyers to be mediators reinforces mediation’s move back to court control. Simon Roberts & Michael Palmer, Dispute Processes: ADR and the Primary Forms of Decision Making (2005)  ADR emerged in late 20th^ century  Pre-imperial Chine: legalism v Confucianism, legalists – strong centralised state, comprehensive codes & rigorous admin courts, Confucianism – legalism encourages adversarial techniques at expense of substantive justice  Sectarian organisation used informal systems for disputes outside of flawed + corrupt society  Close association between state + formal justice forces others to be creative Simon Roberts, “‘Listing Concentrates the Mind’: the English Civil Court as an Arena for Structured Negotiation” (2009)  Large portion of claims rarely culminate in trial

History and Evolution of Alternative Dispute Resolution (ADR) and Third-Party Interveners, Study notes of Immigration Law

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HISTORICAL DEVELOPMENT OF ADR & EVOLUTION OF THIRD

PARTY INTERVENER