The ADR Movement: Theoretical Aspects and Practical Potential

My mission in this paper is to draw upon what we know from the active and lively domestic dispute resolution movements in the United States, Canada, and beyond to identify some of the prospects for and potential problems in developing a dispute resolution system for Canadian-United States trade disputes. Alternative dispute resolution (ADR) is flourishing in the 1980's. Increasing numbers of individuals as well as public and private programs identify their work as alternative dispute resolution. These include private mediation practitioners, ADR partners in major law firms, private organizations such as EnDispute, which will arrange mini-trials and other dispute resolution processes for corporate clients, and Maine's own public court mediation service, one of the pioneers in using court connected mediation in small claims and divorce disputes. Professional schools have incorporated dispute resolution teaching into their curricula, and training conferences for attorneys and others on dispute resolution topics abound. Attendance is increasing at national meetings such as those of the Society for Professionals in Dispute Resolution, and at the same time journals, newsletters, books, and articles about negotiation and mediation are proliferating. All of these signs suggest that the practice of domestic dispute resolution is prospering. The prospects for a thoughtfully designed dispute resolution system operating with regard to Canadian-United States trade issues would appear to be equally promising and, in light of the other papers in this symposium, even more necessary. Such an international system, however, should avoid some of the mistakes made in the domestic movement and must confront some special challenges. Despite its promising outlook, domestic ADR activity suffers to some degree from its misleading name. What, after all, is alternative dispute resolution? The movement appears to define itself in opposition to litigation and adjudication in the courts. Such a definition is problematic on several counts in the domestic context, however, and even more confusing in the international arena.