An analysis of the theory and principles of alternative dispute resolution

Abstract

The system of Alternative Dispute Resolution, commonly known as ADR, comprises multiple informal processes. Traditional processes of negotiation, mediation and arbitration are primary processes within the system of ADR. The elements of the primary processes have been combined with one another or with those of public process to form hybrid ADR processes original only to the system of ADR. These hybrid processes are: rent-a-judge, the mini-trial, the summary jury trial, neutral evaluation and mediation/arbitration. Under the auspices of ADR, derivative processes have also been developed, such as expedited arbitration, documents-only arbitration, final-offer arbitration and quality arbitration. Each process is distinct and separate, having its own unique form, function and method of transforming a dispute. Outwardly, this represents a diverse collection of disjunctive processes. Yet an introspective analysis shows that there is an innate centrality that originates in core principles that bind individual processes to each other and to a unified body of theory. These foundational principles of ADR are replicated in each of its processes. In these terms, ADR is therefore conceptualised as a pluralistic system of dispute resolution that consists of autonomous and individual systems of process that conform to a central body of general theory and consensual principles. As a method of extracting the fundamental principles of ADR, the discontinuities and continuities between the theory and principles of civil procedure, as a unitary system .of procedure, and ADR processes are explored. However, in its conclusions, the thesis rejects the premises of a unitary system of procedure as forming the basis for the theory and principles of ADR. Instead, the contrary notion is advanced that ADR is an independent system of dispute resolution which is based on a theory of processual pluralism and supported by cogent processual principles.