4
New forms of ADR are constantly appearing. Globally available online dispute
resolution is one example.13 The practice, by lawyers, of collaborative law is another.
[11]
Many benefits have been claimed by proponents of ADR. ADR may provide
more satisfactory results than court adjudication because ADR need not be restricted
to consideration of legal issues and remedies; other interests at stake in the dispute can
be accommodated by taking an inte rest-based ( rather than ri ghts-based) appr oach
to problem-solving.14 More satisfactory results are likely to enhance compliance with
the agreement reached. ADR may be more efficient and affordable than litigation. By
choosing their own process, the parties can tailor the process to the dispute. They can
also choose the time when they will engage in ADR. ADR, it is claimed, may help to
preserve a continuing relationship between the disputants or restore a relationship that
has broken down. ADR processes are ordinarily held in private, thereby preserving
the confidentiality of the proceedings and resolution. The participants search for
solutions that are mutually beneficial. What is more, participation in the process
provides the disputants with a positive experience, regardless of the outcome.15
[12]
The early proponents of ADR held idealistic hopes for a shift in societal attitudes
toward harmonious approaches to dispute resolution. They advocated development of
educational programs on problem-solving skills and techniques in elementary,
secondary and post-secondary schools and in the community. As Landerkin and Pirie
put it, ADR (in the form of mediation) purport s to be transformative, empowering the
individual, the community, and even the global village by changing the dispute and
the views and attitudes of the disputants.16 As an aside, the article by Landerkin and
Pirie is timely, extensively researched and thought-provoking. As this paper
progresses, I will be drawing from it more and more.
[13]
Evidence of the impact of ADR on dispute resolution practices is provided by
the appearance in the workforce of persons who make a living by helping others
resolve disputes (e.g., mediators, arbitrators and other persons with similar skills).17
[14]
In summary, the legacy of the initial ADR movement is active participation by
the disputants in the dispute resolution process, a cooperative attitude toward dispute
resolution and a host of new methods of dispute resolution offered in the private
sector as alternatives to adversarial litigation.