November 15 /2012 – Law Week 10
Focus for today…
•What are the strengths and weaknesses of ADR model of dispute resolution
•Shifting “styles” of dispute resolution
•The basic spectrum of ADR
•Formalism vs. In formalism (Process vs. Outcome)
•How we think about “Justice” (McThenia)
•Are some disputes ignored or „veiled‟ through ADR?
***Movement in Canada and US for number of decades
-Formalism and in formalism (court structure and rules of evidence being the same for everyone –
formalism) need to move into informal types of disputes such as mediation, negotiation and
THE RISE OF „ADR‟ BARGAINING IN THE LAW AND ITS „SHADOW‟?
ADR & “Restorative Justice”
-Some people do not use it as much anymore
-They are both the same process in a way; ADR talk about it in the context of civil disputes such as
people, marriage, custody disputes, civil disputes (between individuals) and restorative justice is
with the justice system; the link that draws them together, is that the function of the court is to end
cases then rather to solve them; but just because you end a dispute in court does not mean it is solved
between the offender and victim. Restorative models try to get resolution from individuals (tension
between formal and informal) ... less about treating them the same, but more about treating them
-Philosophical move – long term planning, follow the system, trying to prevent harms in the future,
about getting participation from the parties, incorporate victims and offenders and try to get to the
root of the problem. The more practical side, is that for the last several decades the court systems are
increasingly under a burden with the justice system
•What is the difference?
•The language of ADR is usually applied to civil disputes (tort, divorce, custody) shoots cases out
of court systems and puts it into side systems (in formal) the idea of diversion.
•The language of Restorative Justice is usually seen in Crim. Law
•What is the link?
•Focus is „problem-
•From “ending” “solving” disputes
•Participation of all parties (incl. victim, offender, state, experts)
•Diversion of cases from formal justice system (efficiency!!!)
•PRACTICAL REASONS not PHILOSOPHICAL (Fiss‟s argument) Everybody wins?
• Trubek: “No one really believes in law anymore” (pg. 410) no one really believes in the justice
system as accomplishing as what it says it can. We need to recognize the problems, because of its
basic structure; you either win or lose. (court system is costly and takes a long time, unequal access
and if you do not have a quick resolution neither side is happy). Justice delayed is justice denied.
• Recognition of the weaknesses of a “zero-sum” model of dispute resolution (adjudication last
• Cost & Time – “unequal access”/“justice delayed is justice denied”
• Low party satisfaction (victims & offenders)
• Transformation of traditional approach (breakdown of “party-autonomy” in adversarial model
(Brooks last wk))
• “adjudication” to “therapeutic” role of the Courts (Moore- next wk) start to see courts taking
on a different role, and take the individuals before them and look at them differently; in criminal
law, there is a basic shift form thinking about punishment to thinking about something else (maybe
be more interested in something else).
• Black‟s “s
• In criminal law focus is shifted from punishment and basic treatment (rehabilitation) to “restorative
justice” – goes beyond “correction”
What is “Restorative Justice”?
***State is always involved (state versus the offender more or less)
-A lot of the attention is on the offender and getting them to recognize what they have done and to
apologize. (The apology sometimes just falls flat, as it sometimes a forced apology).
-Not about punishing offenders, but about a broad goal with heeling and community involvement
-Do this by a variety of processes that try to accomplish this such as sentencing circles, victim
offender mediation (they have to sit down together), family conferencing (talk to one another before
dissolving the marriage).
-The approach is founding philosophy between ADR and Restorative Justice
•Focus on wrong done to person & community (diff. State)
•Goal is to (in/voluntarily?):
1. “Restore” the relationship between victim, offender, & the community
2. Prevent future crime from occurring
3. Give victim(s) a chance to express feelings about the harm and how they think it might be avoided
in the future (victims rights mvmt)
•Seeks: “healing, forgiveness and active community involvement”
•e.g. sentencing circles, victim-offender mediation, family conf.
•Much more NEXT week! What is ADR?
***Because it moves out of the justice system is much cheaper than the court model not only for the
party but for the justice system as well. (in a way everyone wins).
-Much more accessible then the court system because it is less formal and is much quicker than the
court system and is much for efficient can get the resolution within a day, but in a civil case not
necessarily. ALL because we do not have the formal rules with evidence, who can speak when and
-The court is highly ritualized, you have certain people in different positions (two sides of the room
and judge in the middle) and is about a fight back and forth procedure of the court room is that it
promotes a kind of adversarial attitude (takes away unnecessary confrontation).
-Party autonomy – not the same interest as the other party ; with ADR parties may have a
relationship that is on going after the trial; can come to a resolution that will benefit both people; can
have a win-win scenario
(May not get what you want, but will get a little bit of what you want and vice versa).
-It is state supported so do not necessarily have to pay for the process itself
•Alternative Dispute Resolution
•Cost (parties & justice system), Accessibility, Speed, Efficiency (CASE)
•“reduce unnecessary confrontation”-de-dramatize (V&N)
•Opposite of “ritualized combat of the Court” (Brooks‟- cathartic)
•Resolve- “makes sense for all involved” (“win-win”)
•State-sponsored (partially funded)
•**The ADR Spectrum** (see chart in V&N!) page 206
•Range of processes (alongside traditional approaches)
•Negotiation, Mediation, Arbitration, Adjudication (litigation)
-Negotiation (informal and party control): the parties are highly in control between you and the
other person; we see as we go through the other kinds of dispute resolutions, you get less and less
control; state is involved; can be completely private
Mediation: Parties usually chose the mediator; if you have a dispute with someone want to go to a
mediation you pick who the mediator is (both of you pick) the actual process is very much left to the
parties; the mediator is to guide the discussion but are very much detached from getting involved
(not much rules or restrictions); there is a third party but does not impose a decision; Just there to get
you talking and come to a resolution. State does not have to be involved
Arbitration: Still usually get to pick the arbitrator but by the time you get to court, you do not get to
pick your judge, the judge will be the judge; much more formal; things you can and cannot talk
about; can be both bind