Arbitration is a ‘thing’ globally, now embraced by lawyers and law firms as a matter of necessity. Mediation is huge in the United States big in the UK, and gaining ground all over the world. Both are classified as Alternative Dispute Resolution, but they are NOT the same. Why then do people – journalists, politicians, lawyers, policymakers etc like to use the phrase ‘ADR’ when they are talking about mediation?
Let’s face it, it is really just and accident of history, that put arbitration and mediation (the pre-eminent forms of alternative dispute resolution) together under the title ‘ADR’. For reasons of history, court-based litigation has for generations been the formal, state sanctioned method of resolving legal disputes. Mediation, arbitration (and a range of other dispute resolution techniques) are ‘alternative’ only in so far as they are not, in the modern era, the conventional form of DR.
Mediation and Arbitration are Different
ADR is a catch all title for anything which is NOT court-based litigation. But why does it follow that ADR techniques such as mediation and arbitration should sit in the same category? Indeed, pretty well the only difference between court-based litigation and arbitration – both adjudicative processes, is that one is a generally public, state function, whilst the other is private. Mediation on the other hand is quite different as we know – facilitative, collaborative, creative and absent winners and losers.
Read a book about ADR or teach lawyers about alternatives to litigation, but in most instances coupling together mediation and arbitration is at best confusing and at worst disingenuous.
Think about it this way. When an arbitrator introduces arbitratal proceedings, does he or she make any reference to mediation simply because of the ADR connection? When a mediator is making an opening statement in a mediation, do the parties need to know anything about arbitration? Would explanation of that procedure be helpful? Of course not because from the disputants’ perspective it would be irrelevant – there is usually no relevant connection.
So why do we so often hear interlocutors talking about ‘ADR’? Perhaps because from a public policy point of view any alternative to court-based litigation offers to reduce the burden on the court system, reducing case backlogs and saving taxpayers’ money. But from the individual disputants’ perspective – so what?
More often I would suggest, it is because the speaker knows roughly what ADR is but does not really understand the techniques corralled together under that moniker. Saying ‘ADR’ allows the speaker to sound like they know what they are talking about – it becomes very convenient to use a catch-all expression. It is sadly very common, and to the knowledgeable ear obvious, when a journalist, legislator or policy maker talk about mediation and arbitration whilst not really knowing the difference.
Regulating the ‘ADR process’
Which brings us to the current Government plans to produce an ADR Framework Act. By all means have a policy to support and develop alternatives to court-based litigation – recognition that such a process of dispute resolution is very often NOT in the best interests of the disputants, society or the taxpayer is assuredly a positive step. But from that point it is quite illegitimate to suggest that law regulating mediation, arbitration (which already has an Act in any case) and all other forms of ADR can have a ‘unified’ policy. It would be akin to seeking to legislate a single set of rules affecting driving cars and flying aeroplanes, simply because both are alternatives to railways. Despite this the proposed ADR Framework Act seeks to produce quite detailed rules covering matters such as registration of practitioners and the ‘Alternative Dispute Resolution Process’.
Reading through the various policy and consultation documents that are paving the way to an agreed policy and draft Bill, one gets the impression that an editor has gone through the document replacing the words ‘mediation’ and ‘arbitration’ with the phrase ‘ADR’ in a determined attempt to force essentially different concepts to sit together. The word ‘mediation’ is only very occasionally used. It is almost as if the writers increasingly realised the conceptual problem they were facing and decided (or were compelled) to ‘solve’ the problem by using just the one term. I wanted to post links to these documents but they do not appear to have been published online.
And then we have the bald fact that the National Centre for International Arbitration (NCIA) has been given the task of co-ordinating the ADR Bill drafting and consultation. As I wrote in an earlier blog, if that organisation had truly been mandated to take a role in the promotion and oversight of mediation, would it not be the NCIADR? Again, it smacks of convenience rather than any in-depth understanding of the lack of congruity between arbitration and mediation.
Mediators, we have work to do. We need to educate the key interlocutors in this debate as to the difference (indeed lack of similarity) between mediation and arbitration. If we do not, the future of our profession may be decreed by arbitrators, by lawyers who are out to do us down, or by politicians who do not understand that ADR is not a single discipline.