Alternative dispute resolution and the United Church: theological and jurisprudential implications of collaborative decision making.

Source: (2000) Ph.D. dissertation, Faculty of Emmanuel College and the Theology Department of the Toronto School of Theology, University of St. Michael’s College. Downloaded 14 October 2005.

There are two questions that underlie this thesis. The first asks why, in the last 25 or 30 years, there has been an enormous growth in Alternative Dispute Resolution in
North American society. Not only the legal system has embraced mediation, arbitration,
community circles, victim-offender reconciliation and related alternatives to litigation,
but so too have school boards, business corporations, community groups and religious
institutions. By looking at the experience within the United Church of Canada, which
adopted ADR in 1997, some of the influences behind and implications of this shift are
identified. These considerations are then revisited and explored in a wider examination
of the question by a review of the literature, which discusses though seldom directly, why
ADR has arisen in the last quarter of the 20th century.
The second question I address is this: How is it that people obey the law, or
choose to act ethically? I identify a phenomenon I cal1 “moral assensus,” which implies
a moral “operating system” or grammar to which society collectively assents. Moral
assensus is an alternative to “habits of obedience,” coercion or economic, cost/benefit
models as a way to account for ethical and law abiding behaviour. Through metaphors
drawn from management theory and science and through theological, philosophica1 and
jurisprudential analysis I suggest how moral assensus contributes to our understanding of
the role of law and ethics in the human project of living in community.

The connection between the two questions comes in my suggestion that the rise of
ADR is in large measure attributable to a dilution of the moral assensus by overly
rational approaches to law and ethics. In our highly individualistic culture, the
inter-subjectivity required for a healthy degree of moral assensus is lacking. ADR
contributes to both the discernment and generation of moral assensus. The principles
central to ADR when absorbed through the experience of conflict resolution have the
potential to transform the way in which persons participate in public discussions of legal,
ethical and political issues. Author’s abstract.