How Alternative Dispute Resolution Promotes Injustice

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 (ADR) 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.

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.’”

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’”. 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. 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.”

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.”

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.

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.

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, “Close 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.”

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.

Michael Barker is the author of Under the Mask of Philanthropy (2017).