This book has grown out of more than a decade of teaching Alternative Dispute Resolution (ADR) for postgraduate students in law at the University of London, as well as many years of research and writing in this field by both of us. The approach taken in assembling the text and materials is intentionally wide-ranging and comparative; – indeed, more so than in the first edition – so that it can be read not only in its own right but also as a broader, contextualising companion to more conventional and jurisdiction-specific ADR texts. The present study is also informed by the view that adversarial litigation can no longer be seen as the paradigmatic process of decision-making in our civil justice system. Looking first at the sources of ADR ideas and the debates which have surrounded the rise of alternative approaches to dispute resolution, we then move on to examine the primary forms of decision-making: negotiation, mediation and umpiring. This is followed by an exploration of the emergence in contemporary Anglo-American practice of the fusions of the foundational modes of decision-making that are generally referred to as hybrid or mixed processes.

In putting together this book, we have been given generous help by others. First, we would like to acknowledge the inspiration we have derived from Hilary Astor and Christine Chinkin's pioneering book Dispute Resolution in Australia (1992; 2nd edn, 2002).

Introduction – The Nature of Mediation

With the gradual re-institutionalisation of mediation in the West across the last years of the twentieth century, quite a strong stereotype seems in the process of emerging. This is one of the disinterested professional, deliberately attempting ‘to advance the interests of the disputants’ (Princen, 1992: 48) by taking responsibility for process, thus assisting embattled parties to reach decisions on the substance of the issues between them. But as we saw in Chapter Four the image of the professional mediator, self-consciously facilitating other people's decision-making on matters in which she or he has no direct stake, conveys only a partial sense of a very complex constellation of interventions, arguably universally visible in one form or another across the social world.

While the mediator receives quite limited attention in classical social theory, a defining analysis was provided early in the twentieth century by the German sociologist Georg Simmel. In some almost poetic passages of his great Soziologie (1908 [1950]), Simmel pointed to the fact that the mediator is always present in the social world even though she may not be named as such and her role may remain unexamined. The constellation yielding the mediator, he argued, is a structural feature, generally observable across cultures in all groups of more than two elements. Reflecting upon the nature of bilateral relations and upon the fundamental ways in which these are transformed by the presence of a third party, he noted: ‘dyads … have very specific features … the addition of a third person completely changes them’ (1908 [1950]: 138).

Prologue

Across the world, there are disagreements between neighbours, family members, affines, colleagues and others. The manner in which quarrel situations are characterised, and the ways in which the particular modes of response are regarded, varies from society to society – indeed, also from group to group within any given society. The nature of disputes, the appropriate responses to disputing situations, and the remedies considered proper are inevitably informed by fundamental social values and even cultural identity. This is the starting point for the examination of dispute processes provided in this book below, which also locates current enthusiasms for ‘alternative’ modes of resolving disputes – especially those found in the United Sates and other parts of the Anglo-American common law world – in a wider comparative framework.

Shifting Ground in the Common Law World

Thirty years ago we could have said with reasonable confidence, in the common law world, what the principal institutions of public disputing ‘were’. Over a long period, judges and lawyers had progressively become central, well-defined agents of public dispute management. The former held out the beautiful promise of an authoritative third-party decision; the latter, as both advisers and champions, presented themselves as essential companions along the arduous route of litigation.

Introduction

Once we start to imagine the range of third-party interventions in dispute processes – forms of ‘the triad’ – the line between ‘mediation’, considered in Chapter Six, and ‘umpiring’ marks the essential internal boundary in analytic terms. It is a move from facilitation, on the one hand, to determination, on the other; the power of decision is surrendered to a third party.

The simplest case we might imagine is that where two parties in dispute agree to approach a non-aligned third – the ‘neutral stranger’ – and ask her to make a determination for them. A whole range of attributes might give the decision-maker legitimacy in a particular case. The parties might trust her: because she has no stake in the issue; because of her reputation as a wise and fair decision-maker; because of her professional background and training. Simmel underlined, in Extract 6:1, the defining quality of this simple case: it lies in the consensual nature of the reference – the disputing parties agree to the determination of their issues by someone else. As he observed: ‘the voluntary appeal to an arbitrator … presupposes a greater subjective confidence in the objectivity of judgement than does any other form of decision’ ([1908] 1950: 151).

Another instance of third-party determination arises where the rank of the third party approached – a parent, employer, religious or political superior – gives that person authority to decide the matter on request of one disputing party alone, irrespective of the wishes of the other.

Introduction

In this chapter we begin by marking out, in broad schematic terms, the larger background to the emergence of ADR in the latter part of the twentieth century. This apparently abrupt shift towards what we have loosely identified as a ‘culture of settlement’ came at the end of a long period during which the lawyer and the judge had emerged as central figures in disputing. The entrenchment of institutions of formal justice, closely associated with the maturity of the nation state, resulted in other foundational institutional forms being marginalised and lost sight of. But these institutional forms, and the values associated with them, were always somewhere in the picture; and as Auerbach (1983), Abel (1982a, 1982b) and Nader (1986) have suggested, a panoramic view would show something of an episodic alternation between values of ‘formalism’ and ‘informalism’. Some sense of this larger picture, inevitably casting doubt upon contemporary claims to radical innovation, provides a necessary context for understanding the contemporary transformation of disputing under the leitmotiv of Alternative Dispute Resolution.

While, as we shall see in Chapter Three, self-conscious efforts to ‘find a better way’ (Burger, 1982) of dealing with civil disputes have in part shaped the ADR movement, co-option by government, large business interests and expansive professional agendas are also important in the movement's emergence and growth. The largely unchallenged critiques of ‘informal justice’ appearing at the beginning of the 1980s deserve careful examination today.

Introduction

Lawyers represent disputes as ‘cases’ – discrete, bounded and pathological episodes, generated by rule-breach. They are, in everyday language, ‘messes’ which need to be ‘cleared up’. In the lawyer's view they are most appropriately cleared up in a particular way, through ‘litigation’. This is a process under which, ideally, evenly matched adversaries fight it out – through their legal representatives – on the level playing field of the ‘justice system’. In native legal theory, litigation culminates in a final moment of adjudication in which a neutral third party reaches an authoritative determination; although, as we have already seen, lawyers have in practice come to use litigation as the vehicle for their negotiating strategies, and in so doing ‘settle’ the great majority of causes before judgment.

Within this universe of meaning, disputes are affairs of ‘naming, blaming and claiming’ as Felstiner, Abel and Sarat put it (Extract 4:1). An individual perceives herself or himself as suffering some injurious experience, identifies this as originating in a legal wrong, blames someone for this and institutes a claim against that someone, setting in train a process that will put the matter to rights. Lawyers representing the parties then reshape the dispute into a form suitable for processing in the legal system, typically transforming it in doing so.

Introduction

Across common law jurisdictions generally, the decades since 1960 have seen native institutions of civil disputing subject to more or less continuous re-examination and renovation. This process has taken place against the background of a particular jural inheritance, of which three foundational elements stand out. First is the historical dominance of state-sponsored adjudication, and hence of litigation, in the theory and practice of civil justice in the common law world. Second is the extent to which, as litigation has acquired a privileged status as the approved mode of dispute resolution, lawyers have through its practice achieved over generations a near monopoly over dispute management. The nature of this monopoly is only fully revealed when it is remembered that judicial appointment represents the ultimate career stage for the successful lawyer. Third is the manner in which lawyers have utilised civil procedure as the vehicle for their negotiation strategies, bringing about the profound entanglement of ‘settlement’ and ‘litigation’. Behind an ideology under which settlement remains virtually invisible and submerged, it is in practice pursued through use of the procedural framework prescribed for bringing a dispute to trial and judgment.

Disenchantment with this distinctive culture of disputing has generated some complex, overlapping conversations, for the most part recognisable earliest in the United States. These conversations have varied in pace and direction from one jurisdiction to another and are not readily subjected to generalisation.

The Nature of Negotiation

Negotiation represents the primary, universal route to decision and action in the social world. The core features of negotiation are to be found in widely different contexts, ranging from the unselfconscious routines of everyday life to the formalised, set-piece exchanges of an international conference. These fundamental features remain constant whether the issue is uncontentious or a focus of extreme conflict. Thus, negotiation as a mode of decision-making spans everyday interaction and the more complex, stressful exchanges encountered in the context of disagreement and dispute.

The features of negotiation are revealed most clearly in simple, bilateral exchanges in which information flows in both directions, understanding is achieved and an outcome is reached – the lived counterpart of Habermas' theoretical construct, the ‘ideal speech situation’ (Habermas, 1979). So negotiation involves communication, leading to joint decision-making. It is a process over which the parties retain control; exchanges take place within a common universe of meaning; and these determine the outcome in immediate terms. Here the ultimate contrast is with acquiescence in an adjudicatory process in which power over the outcome lies with a third party (Extract 5:1).

A number of identifiable conditions have to be present if negotiation is to take place. The first involves finding some medium of communication that will allow messages to pass backwards and forwards between the parties; this may, but need not, involve finding a mutually acceptable forum.

Introduction

In identifying three primary processes of decision-making – negotiation, mediation and umpiring – we have tried to give these modes an analytical clarity that is not necessarily going to be revealed so sharply in real-life forms. At the same time we have left largely unexamined the relationships prevailing between these different processes, and the relative value attached to them, where they are found together in a particular culture. But we have already noted, in Chapter Five, how negotiations are routinely pursued through litigation in the common law world, as a result of the unwillingness of lawyers to contemplate the construction of an agreed resolution to a dispute without mobilisation of the court process. So bilateral processes may take place along the route towards the court. We also saw how judges may depart from an adjudicatory procedure, abandoning a binary, win-or-lose approach to decision-making in favour of encouraging the parties to construct their own solutions. In some jurisdictions, the role of the judge may be seen as one in which mediation is stressed, and adjudication to be relied on to secure an outcome only as a final and unwelcome last resort (see the example of contemporary China: Palmer, 1989). Moreover, as Gulliver has observed, the role of mediator in some cultures is conceptualised and practised in directive, almost ‘umpire-like terms’ (1979: 225–226).

Introduction

The centrality of intention

When deciding how to give away property the owner of assets has a choice between outright gift or a gift in trust. Stripped to its essence the private trust, to reiterate a point made earlier, is a gift projected on the plane of time. However, the limited functional similarity of these two forms of gift, the absolute gift and the gift in trust, must not disguise the fact that they are conceptually distinct.

In practice also there will usually be no difficulty in distinguishing the two forms since trusts are commonly created in writing, usually by deed, wherein the donor designates another person or group of persons as trustee(s). But neither writing nor the appointment of others as trustees is essential.

Introduction

This chapter is concerned with the role played by imputed trusts in resolving disputes over the ownership of family property. By ‘family property’, we mean property acquired by spouses or unmarried cohabiting partners during the course of their relationship, usually (but not always) for their joint use. The disputes with which we are concerned often arise between unmarried partners rather than spouses because, for reasons we shall explore, questions of ownership by married couples are dealt with in other ways. Also, because of the costs involved, these disputes are litigated only when there is property of significant value at stake; and for many couples, the most significant asset will be the owner-occupied family home. Hence, most disputes are over the parties' respective entitlements, on the breakdown of a non-marital cohabiting relationship, to the money value (ie sale proceeds minus any outstanding mortgage) of the family home. There may also be cases where issues of ownership arise in disputes between family members and a third party (such as a mortgage lender): here, the question of ownership is just as important for spouses as for unmarried couples.

The origins of the imputed trust (in the shape of the ‘resulting use’) can be traced back to the latter half of the fifteenth century (see Baker An Introduction to English Legal History (4th edn, 2002) p 251). This chapter, therefore, provides a further illustration of the theme, pursued elsewhere in this book, of the adaptability of ancient trust-forms to new functions.