Think DSD, Not ADR
Everyone knows that the term “ADR” makes no sense. But we stick with it because there’s no general consensus for a preferable alternative. This article argues that dispute system design (DSD) is a better paradigm that should succeed ADR.
Thomas S. Kuhn’s classic book, The Structure of Scientific Revolutions, describes the process of the famous “paradigm shift.” Scientists develop theoretical paradigms that are generally accepted in their scientific community. Over time, some scientists find “anomalies” that cannot be solved within the existing paradigms. Eventually, anomalies accumulate, and innovative scientists develop new theories to explain the anomalies. If a critical mass of scientists agrees on a new paradigm, there is a paradigm shift to the next generally-accepted paradigm.1
This article argues that it is time for a paradigm shift in the way we define our field and engage with our stakeholders. Using DSD integrates the entire dispute resolution universe in a way that makes more sense than ADR.
What’s the Problem with “ADR”?
Originally, “ADR” meant “alternative” dispute resolution. Over time, people in our field didn’t want to identify it as simply not being litigation, and some people have used the term “appropriate” dispute resolution, for example. Some generally prefer the unqualified term “dispute resolution.” But even that term doesn’t have a good definition because there is no essential characteristic of the field, especially a characteristic that other fields cannot claim as well. For example, not all dispute resolution processes involve neutral third parties, focus on parties’ interests, promote party self-determination, provide high-quality procedures, promise privacy or confidentiality, or are innovative.2 The lack of consensus about the name and definition of the field reflects deeper conceptual problems for the field.
Academics and practitioners generally consider ADR to be a collection of distinct dispute resolution procedures—other than litigation. However, Marc Galanter’s concept of “litigotiation” reflects a fundamental reality of civil litigation inconsistent with this traditional conception of dispute resolution. He defines it as “the strategic pursuit of a settlement through mobilizing the court process.” He writes, “On the contemporary American legal scene[,] the negotiation of disputes is not an alternative to litigation. It is only a slight exaggeration to say that it is litigation. There are not two distinct processes, negotiation and litigation; there is a single process of disputing in the vicinity of official tribunals.” This reflects the reality that in many—probably most—contested lawsuits, negotiation and litigation are “inseparably entwined.”3
A similar dynamic occurs in what I called “liti-mediation” cultures, where mediation is routinely integrated in the litigation process. As a result, lawyers expect cases to be resolved in mediation, develop pretrial litigation strategies accordingly, and cause mediators to modify their procedures.4
What Is DSD?
Dispute system design is the “applied art and science of designing the means to prevent, manage, and resolve streams of disputes or conflict” instead of handling individual disputes on an ad hoc basis. DSD is well established in dispute resolution theory and practice.5
In DSD processes, designers’ goals may include providing fairness and justice, efficiency, engagement of stakeholders in system design and implementation, dispute prevention, flexibility and choice of multiple process options, matching of design with available resources, training of stakeholders, and accountability. DSD processes involve identifying stakeholders’ dispute system goals; understanding the context and culture affecting the system; consideration of appropriate dispute prevention, management, and resolution processes; and development of appropriate incentives and disincentives for using the system.6
In essence, DSD is tailoring dispute systems to the needs of stakeholders, especially disputing parties. Good designs fit the stakeholders’ context and culture so that the dispute processes produce as much satisfaction of the parties’ procedural and substantive goals as reasonably possible.
DSD is not limited to initial design of dispute systems as it includes potential monitoring of operation, evaluation, and periodic revision. Nor does it necessarily deal with the entire system, as designers can focus on parts of the system. Nor does it require a large-scale, self-conscious design effort or someone entitled a “system designer.” For example, courts frequently engage in dispute system design as they develop and revise elements of their mediation programs such as deadlines and reporting requirements – even though they do not think of this as DSD.
DSD in Organizations
People use DSD in a wide range of organizational contexts including court and community programs; mass claims facilities; labor and employment systems, commercial, consumer, environmental, and international disputes; transitional justice processes for dealing with the aftermath of wars; and systems for collaborative governance.7
The development of New York State’s presumptive mediation system is a good example of a DSD process. Chief Judge Janet DiFiore and Chief Administrative Judge Lawrence K. Marks initiated a process to develop the system, which involved a wide range of stakeholders including judges, court staff, local bar associations, and an advisory committee. In developing this initiative, the courts relied on empirical research, issued uniform rules, and encouraged development of local protocols, guidelines, and best practices in different jurisdictions. The initiative included plans to collect data for program evaluation and improvements.8
Court-connected mediation programs can (re)design specific elements of their programs reflecting the values of key stakeholders. In my article, Charting a Middle Course for Court-Connected Mediation, I identified two general perspectives about such programs, which I called “voluntary mediation” and “liti-mediation” perspectives. The voluntary perspective emphasizes parties’ decision-making in mediation. Whereas litigation is designed to produce binding adjudications, mediation is designed to help parties voluntarily communicate, negotiate, and settle cases. A liti-mediation perspective emphasizes the values of parties reaching appropriate settlements and avoiding courts’ expenditure of limited resources on cases that might be settled in mediation. From this perspective, courts must regulate mediation and enforce rules to promote these goals.9
I recommended that courts use DSD processes to accommodate both perspectives in adopting rules about any desired policies regarding attendance in mediation, opt-out procedures, duty to negotiate, “good faith” requirements, obligations to bring sufficient settlement authority, parties’ right to leave mediation, and confidentiality.10
You Already Do DSD Whether You Know It or Not
Readers of this article probably don’t have the job title “dispute system designer,” but DSD almost certainly is part of your work. People often think of DSD as being used only in large organizations, but individuals and small practice groups also handle streams of cases and can use these principles and techniques to improve their case management and dispute resolution procedures.
Rather than deciding from scratch how to mediate for every new case, mediators develop systems of default procedures that they adapt to fit the parties, issues, and circumstances of each case. In practice, mediation systems consist of the combination of mediators’ actions before, during, and after mediation sessions. (For simplicity, this discussion focuses on mediators. These ideas can apply to practitioners providing services as neutrals, such as arbitrators and neutral evaluators, and representing clients in those processes.)
For example, many mediators use regular pre-session procedures to design and tailor the mediation process for each case. These may include educating parties about the process, soliciting submission of documents, and discussing specific aspects of disputes. During mediation sessions, mediators have default techniques about joint opening sessions or caucuses, the focus of their questions (such as about expected court results and/or parties’ intangible interests), parties’ participation, use of technological tools, seating arrangements, and even lunch breaks, among many other things. In addition to developing routine procedures, mediators identify categories of challenging situations they regularly encounter and develop strategies for dealing with them.
Mediators generally don’t call their regular approaches “systems,” but that is what they are. Their systems evolve over time based on their practice experiences, reading, training, education, and/or mentoring. Thus, novice mediators use simple systems whereas experienced mediators develop elaborate repertoires of techniques.
Similarly, lawyers representing clients in “ADR” processes also use dispute resolution systems. Lawyers develop default procedures for selecting mediators, preparing clients, engaging with mediators before mediation sessions, using routine negotiation gambits, and managing difficult situations.
How Can Using DSD Help Our Field?
Using a DSD frame avoids the illogical and counterproductive exclusion of lawyers and judges from “our” field. They perform many of the same tasks as “ADR” professionals. For example, lawyers-as-advocates use similar skill sets as many mediators when communicating with clients, giving advice about dispute resolution options, preparing to participate in dispute resolution processes, helping assess cases, giving opinions or advice about substantive issues, and predicting outcomes.11
Identifying our field as DSD would result in a general role conception of dispute resolution practitioner for some practitioners. In the legal context, we now think of practitioners who primarily perform a single function such as being a mediator or litigator. Yet many practitioners act in different roles in various cases. For example, a lawyer may serve as a negotiator, advocate in mediation, litigator, trial lawyer, mediator, arbitrator, and many other possible roles.
Obviously, judges adjudicate disputes—but so do arbitrators, who we universally recognize as part of our field. Judges regularly adjudicate issues related to mediation and arbitration. Judges frequently conduct settlement conferences, similar to mediation. Judges and court administrators manage court-connected dispute resolution programs and are some of the biggest boosters of ADR.
The big difference between judges and practitioners who are universally recognized as part of “our” field is that judges are public employees. But so are court-employed mediators.
Consider this. Judge DiFiore is a member of the DSD field but not ADR.
DSD also provides a logical integration of the entire dispute resolution universe. ADR is an ever-expanding collection of disparate processes, including many mixed-mode variations as well as specialized procedures like standing neutrals, parent coordination, collaborative law, and many more. By contrast, DSD offers a relatively fixed set of concepts and procedures that can be applied in virtually any context.
Conclusion
“ADR” is a name without a valid conceptual meaning that we continue to use because there is no general consensus for an alternative. Switching to a DSD paradigm for the field would require overcoming our status quo bias. I believe that the benefits would be worth the effort. Using a DSD paradigm would help everyone better understand, plan, and use the full range of dispute prevention and resolution processes.
John Lande is the Isidor Loeb Professor Emeritus at the University of Missouri School of Law and former director of its LLM Program in Dispute Resolution. He earned his J.D. from Hastings College of Law and his Ph.D in sociology from the University of Wisconsin-Madison. He began practicing law and mediation in California in 1980 and he directed a child protection mediation clinic in the 1990s. His website, where you can download his publications, is www.law.missouri.edu/lande.
This article is adapted from John Lande, Real Mediation Systems to Help Parties and Mediators Achieve Their Goals, 24 Cardozo J. Conf. Resol. (forthcoming 2023).
Endnotes
1 Thomas S. Kuhn, The Structure of Scientific Revolutions 52-91(4th ed. 2012).
