Source: (2012) Ohio State Journal on Dispute Resolution. 27:477-538.
What’s the difference between litigation and alternative dispute resolution (ADR)? Litigation is war. ADR is kumbaya
by the campfire. Litigation favors the strong over the weak. ADR gives everyone a voice. Litigation is about competition
and gameplay. ADR is about cooperation and problem-solving. Litigation is coercive. ADR is consensual. Litigation
brings out the worst in people. ADR brings out the best. In short, litigation is dystopian, and ADR is utopian. This
sanguine conception of ADR has been popular for decades but is hopelessly inadequate. Although a utopian-dystopian
dynamic does indeed fuel much ADR scholarship, this dichotomy is not as simple as ADR-good, law-bad. Not only are
there multiple utopian visions in ADR that are sometimes contradictory, the utopianism of ADR may actually make alternative
processes more vulnerable to dystopian propensities than traditional legal processes. This article explores these
paradoxes by examining the ways in which alternative processes respond to legal deficiencies, imagine different approaches
to dispute resolution, and manage the ideological and practical challenges of effectuating positive social
change. Understanding more about how ADR navigates between utopian and dystopian visions of sociopolitical life illuminates
certain cultural assumptions around the possibilities and limits of dispute resolution while suggesting new directions
for ADR theory. (author’s abstract)
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