Conflict Diagnosis and Alternative Dispute Resolutuion

In 1975, when I began the study of law at the University of Southern California, there were virtually no law school courses that taught the law and practice of Alternative Dispute Resolution (ADR). But soon thereafter, a revolution took place in the legal systems of the United States and other westernized nations: potential litigants and their attorneys began to let go of the view that a lawsuit is the inevitable conclusion to an unsettled dispute. In the 1970s, the ADR revolution began, almost timidly, as a counterculture oddity, with a few community mediation centers springing up in big cities, and a few divorce professionals experimenting with alternatives to the adversary process for families seeking "friendly divorces." I myself joined this experiment in 1983, obtaining graduate training and becoming a divorce mediator in those early years when divorce mediators were about as common as a six-toed cat. Proving that it was not a passing fancy, ADR gathered steam throughout the 1980s, and exploded into mainstream legal practice in the 1990s. By the turn of the twenty-first century, every federal trial court and nearly every state court had some sort of ADR program. Virtually all law schools had courses in ADR, and many offered elective concentrations and clinical programs in the field. Thanks to the work of visionaries, geniuses, and pioneers of ADR--Robert Baruch-Bush, Former Chief Justice Warren Burger, Roger Fisher, Stephen Goldberg, Kimberly Kovach, Kenneth Kressel, Lela Love, Carrie Menkel-Meadow, Len Riskin, Frank E. A. Sander, William Ury, and James Westbrook, plus my own mentors, Elizabeth Koopman and Joan Hunt and others too numerous to mention--it seems clear that ADR is here to stay. And, yet, it is still unsettled just what sort of legacy these trail-blazers will leave behind. ADR gives us a dazzling array of choices when a dispute arises or a transaction runs into trouble. Our decades of reliance on adversarial methods of settling interpersonal conflicts has left fallout: our view of conflict is blinded by our narrow past experience. The application of ADR processes to legal disputes that would otherwise have been litigated (or settled "on the courthouse steps") may turn out to have profound implications, both on the personal-client level and on a broader societal level; beyond the savings of cost and time, the choice, selection, and presentation of ADR processes to disputants has the potential to transform culture, for good or ill. But despite the potentially monumental nature of the transformation on which our legal system is embarking in the ADR revolution, there is a tendency to use ADR processes without a careful understanding of their uses, applicabilities, and impacts on individual disputants and on the legal system and society as a whole. The lack of appreciation for the subtle distinctions among ADR processes is part of a bigger problem: we do not have firmly in place methods of understanding interpersonal conflict so that we can select, or design, optimal methods of handling them, nor would most of us recognize a good strategy if we saw it. Add to this deficit the Western cultural reliance on "rugged individualism" and the American belief that competition is integral to social organization, and a serious blind spot is created, one that often prevents us from selecting dispute-resolution processes well and wisely. Indeed, these lapses are often invisible players in the decisions our government makes when it designs and funds dispute resolution programs, as well as in decisions about how our law schools teach new lawyers to use ADR. Thus, early in the ADR revolution, many experts in the field wonder whether the true potential of ADR as a tool that can be tailored to individual conflicts will ever be realized. This textbook is an effort to fill this void, by presenting a method of understanding interpersonal conflict and ADR that transcends the existing blinders.Coltri, Laurie S. is the author of 'Conflict Diagnosis and Alternative Dispute Resolutuion', published 2003 under ISBN 9780130981097 and ISBN 0130981095.