ALTERNATIVE DISPUTE RESOLUTION

Alternative Dispute Resolution

Alternative Dispute Resolution

What is ADR?

ADR is most commonly used as an acronym for alternative dispute resolution, which encompasses a range of alternatives to litigation and formal adjudication (Yarn 1999). Recently, it has also been used to refer to appropriate dispute resolution, which suggests that there is nothing “alternative” about ADR processes and that they are significant in and of themselves. Despite these distinctions, ADR has emerged as a comprehensive term that captures the widespread efforts and processes focusing on less combative, more collaborative, and more efficient ways of handling all kinds of legal matters (Volpe, 2007). The term has also been used to refer to techniques, methods, and procedures used in a variety of other situations beyond the judicial litigation context. In the criminal context, it refers to the application of selected dispute resolution processes to a wide range of interventions, from prearrest to post conviction, many of which are not specifically related to the traditional judicial setting (Roberts, 2006).

There is no universal agreement on what processes qualify as ADR. Moreover, the dispute resolution processes encompassed under the ADR umbrella are very diverse. They lie along a continuum, ranging from informal discussion and complete empowerment of affected parties to processes akin to formal adjudication, where decisions are made by a third party (though these are not as formal as traditional court processes, as relaxed rules of evidence and procedure are generally used). However, ADR processes can be divided into three categories, which emphasize negotiation, mediation, and arbitration (Menkel, 2006).

Because mediation is used in different contexts and influenced by many variables including the mediator's style, skills, techniques, and orientation, there is much disagreement about how mediation should be done. There continues to be a lively debate regarding the different approaches used by mediators—facilitative, evaluative, or transformative (Bush and Folger 1994; Riskin 1996). Nonetheless, one of the features that distinguishes mediation from other processes is the notion of self-determination by the parties (Grillo, 2007).

According to the Standards of Conduct for Mediators developed by the Society of Professionals in Dispute Resolution, the American Arbitration Association, and the American Bar Association, “Self-determination is the fundamental principle of mediation.. Mediation's increasing acceptance is evident in numerous statutes that, with few exceptions, have addressed less serious criminal matters of a misdemeanor level (Rogers and McEwen 1994). In addition, countless programmatic efforts are under way, some of the most popular of which are the community mediation and restorative justice programs that handle matters of a criminal nature (Auerbach, 2006).

ADR's Rich History In Criminal Justice

The use of ADR processes in the criminal justice system is not new. Throughout the criminal justice system, there is a well-established history of processes, practices, and techniques that could be considered part of the ADR field. A closer look at traditional policing, for example, shows that significant aspects of police work have always included the use of ADR processes, particularly negotiation and mediation. Police officers on the beat routinely have to communicate with citizens and assist them ...