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31st December 2017

Alternative Dispute Resolution or Legalism? Beyond the Schism!

Executive Summary

Under the umbrella term Alternative Dispute Resolution (ADR), discourses around mediation and other non-judicial approaches to conflict resolution have been constrained by a predominantly legal narrative ultimately founded on an `either-or’ dichotomy between status quos instead of allowing a third way resting on a `both-and’ approach. The highly influential ADR critic Owen M. Fiss rejected ADR as a threat to human rights, public values and justice. He argued that the legal script is the only reliable bulwark against demoralization under the spread of capitalism, and a yardstick by which public values can be maintained. Given the increasing commodification of justice and the law’s blindness for complex processes and structures, it is apparent that the legal tradition by itself has proven to be incapable of defending these values effectively. An approach to conflict transformation — which goes beyond being an Alternative Dispute Resolution to the judicial process, and transcends the dualism of either-or — may offer a more adequate response to address the challenges Fiss was justifiably concerned about. Mutli-disciplinary problem-solving teams, deep reconciliation and dialogue approaches are needed to address underlying conflicts the symptoms of which may become salient as legal breaches.

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Table of Contents

I: Introduction: Is legalism better suited for dispute resolution?
II: Key Diagnosis: High risk of commodified justice
III: Key Prognosis: Careful: Capital may subvert the rule of law
IV: Key Therapy: Conflict Transformation conciles legalism & ADR


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