Alternative Dispute Resolution or Revolution


By Michael Barker






Alternative Dispute Resolution is a blanket term referring to non litigious methods of resolving legal disputes. Mainstream media and legal commentary endorse these alternatives as providing win-win, power balancing situations for all parties involved, whether corporate citizens, or natural persons. Taking into account zealous adoption of Alternative Dispute Resolution by corporate and political elites it would be more appropriate to promote ADR as a method to attain corporate equity, rather than human equality.

This point is made by Ugo Mattei and Laura Nader in their book, Plunder: When the Rule of Law is Illegal (Blackwell Publishing, 2008). They note that Alternative Dispute Resolution practices are in fact harmony ideologies that “may be used to suppress people’s resistance, by socializing them toward conformity by means of consensus, cooperation, passivity, and docility, and by silencing people who speak out angrily”. Arguably such manipulative techniques do not resolve disputes but redirect them into channels that prevent their resolution. Nader’s critiques have existed for decades without heed and currently Alternative Dispute Resolution is regularly championed as a cheap, fast alternative for individual citizens experiencing injustice to offset elite power and patriarchy.

This article will examine some of the critical literature pertaining to the promotion of Alternative Dispute Resolution. It will also scrutinize a variety of influential groups and individuals at the forefront of the Alternative Dispute Resolution (ADR) industry, and conclude by presenting a revolutionary alternative.

The Liberal Foundations of ADR

The use of alternative means of settling legal disputes has a long history: in her review of Jerold Auerbach’s book Justice Without Law? (Oxford University Press, 1983), Laura Nader recounts how Auerbach wrote that prior to the Civil War, “alternative dispute settlement had expressed an ideology of community justice. Thereafter,” Nader continues “according to Auerbach, it became an external instrument of social control and a way of increasing judicial efficiency.” Nader observes how a “similar use of alternative dispute settlement appears during the period of labor-management conflict at the end of the nineteenth century,” with the major stimulus mobilizing elite ADR proponents being the “railroad strikes and riots during the violent summer of 1877.” The resulting industrial arbitration tribunals were considered to be the answer to class conflict, a solution that Nader notes “was at first considered suspect by both workers and employers, but which was embraced by middle-class reformers.” She continues that “Auerbach contend[ed] that ‘[i]ndustrial arbitration remained a panacea offered by anxious middle-class professionals who felt dangerously squeezed between capital and labor.’ The solution was limited, however, because ‘[p]roponents of harmony through arbitration persistently evaded the basic issues of unequal wealth and power.'” [1]

These capitalist solutions to enduring problems arose for the same reason that liberal philanthropy was institutionalized in the late nineteenth century. With workers presenting a direct threat to the economic interests to the monopolistic ruling class, the more enlightened state-protected capitalists (e.g. Andrew Carnegie and John D. Rockefeller, Jr.) realized “that social reform was unavoidable,” and so they “promoted reformist solutions that did not threaten the capitalistic nature of the social order but constituted a ‘private alternative to socialism'”. [2] Not surprisingly one of the leading institutions for securing the hegemony of corporate interests, the liberal philanthropic giant known as the Ford Foundation, had a hand in catalysing the rise of the recent ADR phenomena. Calvin Morrill writes:

Community mediation took early shape in 1968 when the Ford Foundation began funding community programs to mediate racial conflicts. The Foundation funded the National Center for Dispute Settlement in 1968 (which later became the Community Dispute Service Center) with organizational support from the American Arbitration Association, and in 1970 funded the Institute for Mediation and Conflict Resolution. Both of these programs trained community “interveners” to mediate intergroup conflict. While the community interveners worked in the neighborhoods, the community mediation frame (also referred to as the “neighborhood justice model”) took shape in a series of articles by anthropologists and law professors.

Thomas Main also points out how a Ford Foundation report published in 1977 notes that: “The Foundation plans to support investigations of new ways of settling disputes that may be more equitable, cheaper, and less divisive than the adversary process.”

Teresa Chase and Melissa Brewer, meanwhile, describe how,

perhaps the most critical moment marking the contemporary growth of ADR can be traced to the 1976 Pound Conference. At this conference two powerful male legal authorities combined to begin the modern push for ADR in the United States of America. These two men were the Chief Justice of the Supreme Court, Warren Burger, and Harvard Law School Professor Frank E.A. Sander. It was suggested that the American courts were weighed down by litigation caused by the decline in morality and the controlling influences of religion and the nuclear family and that there was a need to find a way to reduce this pressure, allowing the courts to administer justice more efficiently. [3] In fact the courts were not experiencing a surge of overtaxing litigation; rather they were experiencing a rise in the successful litigation of cases that involved gender, race and civil rights. In a bid to rid the courts of these ‘garbage‘ cases ADR was posited as the answer. This alternative system of conflict resolution arose in a time where the formal institutions of ideological control were being successfully challenged and where there was concern about the demise of informal institutions of control. [4]

As an aside, it should be recognized that the major liberal foundations that supported the rise of ADR were also responsible for the increase in the successful litigation of public cases that motivated the corporate uptake of ADR. A strong case can be made that liberal foundation support for litigation within the environmental movement facilitated the replacement of the New Left political discourse of the 1960s with a technical environmental discourse in the 1970s. The Ford Foundation catalysed this transition by helping to create three new environmental law firms in the late 1960s, the Environmental Defense Fund, the Natural Resources Defense Council, and the Sierra Club Legal Defense Fund. These legal groups received the lion’s share of the Ford Foundation’s funding for environmental movements, and although the foundation did not directly control these organizations’ activities, it was, for instance, able to use its significant funding leverage to coerce the Natural Resources Defense Council into dropping its controversial strategy of suing corporations. Furthermore, to ensure that the Environmental Defense Fund and Natural Resources Defense Council took on ”appropriate” projects, the Ford Foundation vetted their work by setting up an oversight board that was composed of five past-presidents of the American Bar Association. However, despite exercising a degree of control over the broad uptake of public litigation, liberal foundations could not prevent the ensuing corporate backlash in response to the legal empowerment of the citizenry.

Sharon Beder observes in her excellent book Global Spin: The Corporate Assault on Environmentalism (Scribe, 2000), how the increasing influence of the public on the government and the subsequent regulations meant that “businesses began to cooperate in a way that was unprecedented” – a process that “was facilitated by the introduction of legislation such as the Clean Air Act that affected large numbers of industries as opposed to just one industry at a time.” Joseph Peschek writes:

While these programs were limited in many ways, they did provide the working class with benefits that attenuated the disciplinary effect of the labor market, while imposing new costs on capitalists, and thus they became the objects of intense contestation by business groups as the economic crisis deepened. Citizen rights secured through the liberal democratic state now loomed as barriers to the restoration of the conditions for capitalist accumulation. Neoconservative intellectuals began to bemoan the “excess” of democracy and the “overload” of government, calling for a reassertion of state authority and a reduction in social welfare expenditures and business regulations. [5]

Consequently, driven by conservative elites, this neoliberal/neoconservative backlash sought to quash the public’s democratic advances. The birth of this neoliberal assault on society has been traced by many researchers to the launch of the Business Roundtable in 1972. [6]

Viewed in this light, the promotion of ADR at the 1976 Pound Conference should be interpreted as an enlightened “liberal” response to the less subtle power grab being promoted by the Business Roundtable and America’s leading conservative foundations. Unfortunately, the success of this co-optive liberal strategy has been so great that even progressive activists fighting corporate power unwittingly urge citizens to adopt ADR practices, promoting mediation rather than confrontation.

ADR Today: Peaceful Coexistence?

Harvard Law School became a leading proponent of ADR mythology by building upon the work of Pound Conference notable, Professor Frank E.A. Sander. In 1983 Sander cofounded Harvard’s Global Negotiation Project. This project is headed by William Ury, who is most famous for being the co-author (with Roger Fisher) of Getting to Yes: Negotiating Agreement Without Giving In (Houghton Mifflin, 1981), “a five-million-copy bestseller [that has been] translated into over twenty languages.” This book is considered the seminal text within a flourishing pro-corporate ADR body of literature.

In 1979, Ury’s co-author, Roger Fisher, founded a group that provided the inspiration for Sander’s Global Negotiation Project, which was called the Harvard Negotiation Project. Given the compatibility of the win-win approach to corporate prerogatives it is fitting that James Sebenius, the Director of the Harvard Negotiation Project, formerly served as the Vice President of the Blackstone Group, and is the founder of Lax Sebenius LLC – a “negotiation strategy and capability-building firm” that works with corporate and government elites “to help achieve better results in their most important negotiations.” [7] On top of this, the resume of the current Associate Director of the Harvard Negotiation Project, Daniel Shapiro, boasts that: “Through funding from the Soros Foundation, he developed a conflict management program that has reached nearly one million people in 22 countries across Eastern and Central Europe.” George Soros remains one of the world’s most powerful liberal philanthropists, and demonstrates a strong commitment to manufacturing public consent for corporate profit (see, ‘The Soros Media “Empire”: The Power of Philanthropy to Engineer Consent’). So given the ties to Soros it is relevant that Fisher’s co-author, William Ury, formerly served as an advisor for the controversial Albert Einstein Institution, and presently serves on the advisory board of the National Peace Foundation (the group that successfully lobbied Congress to create the arch democracy-manipulator the misnamed U.S. Institute of Peace).

Fisher also maintains other elite connections. He is the founder of a non-profit conflict resolution-consulting firm called Conflict Management Group – an organization which in 2004 was merged into the U.S.-government funded “humanitarian” non-governmental organization Mercy Corps (in just 2004 alone, Mercy Corps obtained $98 million from the government). Here it is interesting to observe that the former Vice Chair and Senior Consultant of the Conflict Management Group, Antonia Chayes – who presently acts as a project chair at Harvard’s Program on Negotiation – had earlier served in the Carter Administration as the Under Secretary of the U.S. Air Force. Furthermore, without apparent concern for conflict of interest, Chayes then served from 1981 until 2002 as a board member of major U.S. defence contractor United Technologies Corporation. These military connections are of course vital to successful “conflict management,” because if the negotiators’ fail to resolve a conflict of interests between say the U.S. government and a weaker state in favour of the former, then the threat of military action will surely serve as an efficient catalyst to bring the weaker party back to the “negotiating” table. [8]

Finally it is worth pointing out that Chayes serves on the advisory board of the Center for Preventive Action – a joint project of Human Rights Watch and the elite think-tank the Council on Foreign Relations (for a critique of this group see ‘The Council on Foreign Relations and the Center for Preventive Action’). With both the Council and Human Rights Watch fulfilling critical democracy-manipulating roles for the liberal establishment, it is fitting that the former Chairman of the American Bar Association’s Alternative Dispute Resolution Committee (1976-86), Ronald Olson is a member of the Council on Foreign Relations and is married to Jane Olson, an individual who formerly served as co-chair of Human Rights Watch/California, and presently serves on two advisory committees for Human Rights Watch. In the past, Ronald Olson notably served as the board chair of the imperial think-tank, the Rand Corporation. This is of interest because Kenneth Feinberg is the chair of the board of overseers of ADR-promoting Rand Institute for Civil Justice, and also serves as the Vice Chair of the board of directors of a “humanitarian” group, critiqued in an earlier article, known as Human Rights First.

Alternative Dispute REVOLUTION

Laura Nader has referred to Alternative Dispute Resolution as a practice that promotes the “rhetoric of peace through consensus.” It is unlikely that such an objective will ever bring real peace to human existence. However, there is a real alternative for concerned citizens wishing to resolve oppressive social, political and economic conflicts; this under-utilized tool to resolve conflict is Alternative Dispute REVOLUTION. The key to this approach lies in recognizing that many problems cannot be resolved amicably for all parties concerned; this is especially true in cases involving an inequitable distribution of power between the disputants. In cases where the exploited wish to challenge the actions of a powerful oppressor, they would be wise to look to revolutionary tactics to address their problems. This would require the adoption of a radical mindset that seeks to search out the root cause of the dispute, so that they can effectively tackle the problem at its source. If uninhibited thinking is given free reign it is quite likely that people will recognize that to prevent the systematic exploitation of the bulk of humankind by an over-class of rapacious “capitalist” elites, they need to work towards catalysing a revolution in human affairs. One revolutionary option to minimise oppression is anarchism, which could be promoted while simultaneously punishing oppressors by insisting on justice obtained through existing (and strengthened) legal structures. Institutionalized systems of domination, like hierarchy, must ultimately be dismantled.

Current legal systems must be revolutionized, because at present our legal institutions primarily protect property rights, not human liberty. As Ugo Mattei and Laura Nader write, contrary to mainstream media opinion, “[c]lose examination of the use of law in colonial times shows that ‘empowerment’ is an unintended consequence of the formal rule of law.” As a result of this “empowerment potential of the law,” they add, “colonial rulers often entered into alliances with local patriarchal powers, limiting access to the modernized legal system and acknowledging ‘traditional’ power structures (often invented).” Thus, Mattei and Nader suggest that the rule of law is double-edged, as…

it can favor oppression but it can also produce empowerment of the oppressed that leads to counter-hegemony. This is why powerful actors often attempt to tackle counter-hegemony by incorporating harmonious “soft” aspects aimed at disempowering potential resistance from the oppressed by limiting their use of adversary courts. Today, the worldwide alternative dispute resolution (ADR) movement functions as a strong disempowering device, that the dominant discourse makes attractive by the use of a variety of rhetorical practices, such as the need to remedy the “excesses” of litigation, or of promoting the desirability of a more “harmonious” society. [9]

Conflict is not the enemy, but instead is the means of promoting justice. Unresolved conflicts that are “resolved” without adequate justice (via ADR and the like) are ultimately the enemy of all humankind, as they help institutionalize inequality. Instead of promoting an unequal society that glosses over contradictions and achieves harmony through oppression, we need a society that can solve disputes in a manner that will promote a diversity of opinions not harmonious conformity. This will mean that we will need to dispel the myths surrounding dominant legal practices so we can create the true revolutionary alternatives that will work to sustain life not profits.





Endnotes

1. Laura Nader, ‘The Recurrent Dialectic between Legality and Its Alternatives: The Limitations of Binary Thinking’, University of Pennsylvania Law Review, 132 (3), March 1984, 627-8.

2. Nicolas Guilhot, ‘Reforming the World: George Soros, Global Capitalism and the Philanthropic Management of the Social Sciences’, Critical Sociology, Volume 33, Number 3, 2007, 451-2; For a general discussion of the influence of liberal philanthropy on the processes of social change see my article ‘Do Capitalists Fund Revolutions? (Part One, and Part Two)’.

3. Laura Nader, ‘Controlling Processes in the Practice of Law: Hierarchy and Pacification in the Movement to Re-Form Dispute Ideology’, Ohio State Journal on Dispute Resolution, (1993) 9 (1).; Nader observes that the “ADR rhetoric of the past two decades was a response to the law reform discourse of the 1960s, a discourse concerned with justice and root causes…” She continues that the ADR movement was “constructed to replace justice and rights talk with what I call harmony ideology, the belief that harmony in the guise of compromise or agreement is ipso facto better than an adversary posture.” “In any period of history, harmony ideology is accompanied by an intolerance for conflict. The intention is to prevent the expression of discord rather than to deal with its cause takes on prominence.”

Sally Engle Merry writes: “The important story was that working-class people had a sense of entitlement to the law and a sense of rights. … [D]eflecting these people and their complaints to mediation had the effect of undermining their sense of rights and thus muting their challenge to the existing distribution of power in American society.” Sally Engle Merry, ‘Pluralizing Paradigms: From Gluckman to Foucault’, PoLAR: Political and Legal Anthropology Review, (1999), 22 (1), 118.

4. Teresa Chase and Melissa Brewer, ‘Sexual Harassment in the Workplace and Conciliated Outcomes: Who Really Benefits from Conciliation?’, Presented at the Australian Labour Law Association Fourth Biennial Conference, Melbourne, November 14-15, 2008, 265; They go on to conclude this statement by noting: “The conciliation process arose out of patriarchal concerns. As such it is worrying to note that such processes are viewed as ‘female friendly’, producing outcomes women are happy to live with.” Indeed, Nader also writes that “mediation was put forward as an alternative because it promised to be a feminist alternative to the patriarchally inspired adversary system.”

5. Joseph Peschek, Policy Planning Organizations: Elite Agendas and America’s Rightward Turn (Temple University Press, 1987), 53.

6. Sharon Beder, Suiting Themselves: How Corporations Drive the Corporate Agenda (Earthscan, 2006), 12.

7. From 1977 to 1980 Sebenius served with the State Department on the U.S. Delegation to the Law of the Sea negotiations – an issue about which he published a book titled Negotiating the Law of the Sea (Harvard University Press, 1984). Sebenius then joined Harvard, and in the mid 1980s he left his university position “to work full-time for investment banker Peter G. Peterson, co-founder with Stephen Schwarzman of the New York-based Blackstone Group, now one of the world’s leading merchant banking and private equity firms.” While at the Blackstone Group, Sebenius worked “initially as vice president, and later as Special Adviser to the firm after returning to Harvard.”

8. In addition, Antonia Chayes is the President of the Consensus Building Institute. This group was founded in 1993 by Lawrence Susskind, who acted as the Institute’s President until 2006, and had previously served as the first Executive Director of Harvard’s Program on Negotiation (1982-85). In recent years, with initial financial support provided by the Rockefeller Brothers Fund, the Consensus Building Institute has worked in collaboration with Search for Common Ground (a group that has received funding from the important democracy-manipulator the National Endowment for Democracy) to launch their U.S.-Muslim Engagement Project. As one might expect, the leadership council of this so-called consensus seeking project reads like a who’s who of the U.S. democracy-manipulating community, including the likes of Project for a New American Century Signatory and former chair of the National endowment for Democracy, Vin Weber; while another notable member of their leadership group is William Ury.

9. Ugo Mattei and Laura Nader, Plunder: When the Rule of Law is Illegal (Blackwell Publishing, 2008), 18.











Michael Barker is a doctoral candidate at Griffith University, Australia. He can be reached at: mbarker@riseup.net




























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