Mediating Interpersonal and Small Group Conflict. Cheryl A. Picard

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СКАЧАТЬ States. Some say it stemmed from “grassroots” initiatives led by church, social service, and citizen advisory groups motivated to respect the needs of all participants in social conflict. To them, crime was not merely a breaking of laws, it also damaged human relationships. Thus it was felt that attention should be given to repairing social relations, dissolving conflicts, and encouraging compliance rather than using coercion. Meaningful change and promotion of new ways to deal with conflict in the community are believed to be some of the motives of early reformers.

      The second interpretation of ADR’s development is as a response to an unsatisfactory legal system which had become congested, costly, and serving the interests of the affluent and powerful. Inconsistencies in sentencing, opposition to the conservative view of “just deserts”, efforts to minimize stigmatization, alienation of victims from offenders, overuse of the system – all contributed to a “crisis of legality”. Deprofessionalization, delegalization, and decentralization became the focus of activity of the ADR movement, according to this interpretation of its development.

      In Canada, the informal justice movement gained momentum from concerns generated from inconsistencies in sentencing; the alienation of victims from their offenders; and, in the case of young offenders, the influence of labeling theory which sought to minimize stigmatization. The Canadian legal reform agenda of the 1970’s resulted in a number of activities being undertaken, the most notable being the repeal of the Juvenile Delinquents Act, and the work of both the Law Reform and Sentencing Commissions. In the 1975 Law Reform Commission of Canada report, “Studies on Diversion”, the use of ADR was supported based on the conclusion that adjudication was not always appropriate given that the underlying problems of crime were not addressed. The Report went on to say that most of the crimes against persons involved people who knew each other and that the adversarial process contributed to creating a “winner and a loser”, which detracted from ongoing relationships. Supporters of informal justice espoused notions of individual and collective empowerment through community mediation and diversion programs. The need for alternative dispute resolution was also supported by criticisms, such as those cited by the Honourable T.G. Zuber in his 1987 Report on the Inquiry into the Ontario Provincial Court System. Justice Zuber found that minor criminal matters were expensive to defend, leading some accused to plead guilty, which in turn led him to suggest that only the very wealthy or the poor on legal aid could afford to go to court. At the time of the Zuber inquiry, delays in criminal courts in some cities were in excess of a year and civil court cases were taking at least that long to reach the pre-trial stage. Courts were seen to be seriously divisive and unable to resolve the underlying causes of crime.

      Early ADR initiatives were also an expansion of a philosophical approach to conflict resolution commonly referred to as “social justice”. The social justice movement sought to reduce conflict in the community, maintain better relationships among its members, and bring problem-solving back to the community. Concepts such as alienation and reparation – rather than retribution – led reformers to consider ways of bringing victims and offenders together as a means of giving justice back to the community through the restoration of the victims’ situation to what it was rather than through punishment of the offender (Wright, 1988). Victim-Offender Reconciliation Programs (VORP) aimed at doing away with court proceedings and eliminating a criminal conviction, while at the same time making things right between the victim and offender. In 1974, the first VORP in Canada was established in Ontario.

      While it is true that some of the ADR movement stemmed from “grassroots” initiatives directed at respecting the needs of participants in social conflict, much of it was characterized by a move away from the adversarial model employed by the legal profession. Legal reformers conveyed their language of dissatisfaction with formal structures and criticized the legal process for being fundamentally alienating. In Canada and the United States, crime was seen not merely as a breaking of laws, but also as damaging human relationships. Alternative dispute resolution programs in both countries had many similar features:

       emphasis on agreed outcomes rather than on strict normative correctness;

       preference for decision through mediation rather than adjudication;

       recognition of the competence of the parties to protect their own interests and to conduct their own defense in a deprofessionalized setting and through a process conducted in ordinary language; and

       absence of institutionalized coercion.

      Two types of actors supported the development of ADR. On the one hand, community activists espoused the potential for individual and collective empowerment. The Central Mennonite Committee, the Quakers, the Jewish Conciliation Board, and the YMCA each played important roles in the establishment of informal justice programs. On the other hand, legal reformers, faced with problems of legitimization and a dysfunctioning system, saw ADR as an answer to some of their administrative problems. Legal reform also suited the decentralization interests of the government. In the United States, the legal sector was very influential in the development of ADR. That influence continues today. For instance, in 1978, the American Bar Association formed the Standing Committee on Dispute Resolution; by 1990 there were at least 157 local or state committees. In 1983, the Harvard Law School established a Program on Negotiation and by 1990, ADR courses were offered in 150 of the 175 accredited American law schools (NIDR, 1992). By 1995, there were more than 5000 dispute resolution practitioners known to exist in Canada (Department of Justice, 1995). No doubt that number is much larger today.

Benefits of ADR

      ADR was praised for its administrative efficacy. It could offer equal access, act quickly, and allow all citizens to participate in decision making. It was claimed to be faster, less expensive, more accessible and approachable, less coercive and less oppressive, and better suited to tailoring outcomes to the needs of those involved than traditional justice. Informal justice was directed at maintaining relationships, not determining legal right and wrong. It was thought to result in greater satisfaction with resolutions, higher levels of compliance than with adjudicated decisions, and improved capacity for resolving future disputes without external intervention. By using volunteer lay personnel and low-paid paraprofessionals, less formal practices were seen as a means of alleviating the fiscal crisis of the state and problems of overcrowding in courts and prisons.

      Today, ADR is increasingly being sought as an administrative solution for an overworked court system.² This interest is bolstered by the demand for cost reduction by government officials who struggle with declining economies and escalating deficits. In Canada, the Ontario Supreme Court decision in Askov³ put pressure on the province to look for dispute resolution options to reduce court backlogs. In 1994, the Ontario Civil Justice Review was commissioned to develop “an overall strategy for the civil justice system in an effort to provide a more speedier, more streamlined and more efficient structure” (1996:viii). A key component of the 78 recommendations contained in the Commission’s First Report is that courts would adopt the concept of dispute resolution and integrate alternative dispute resolution techniques. After a successful pilot program in Toronto (Mcfarlane, 1995), it was concluded that referral to ADR was cheaper, faster, and more satisfactory. Based on the success of the pilot project, each civil case in Ontario is now mandated to attend mediation before the court will entertain to hear the case.⁴

Criticisms of ADR

      Critics of ADR suggest that it expands state control (Abel, 1982), that it is a product of the changing nature of state power and form of law (Spitzer, 1982), and that it re-legitimizes the formal legal system (Harrington and Merry, 1988). ADR is accused of providing СКАЧАТЬ