In negotiation, parties seek to resolve a disagreement or plan a transaction through discussion and reasoned argument. The discussions may be conducted between the parties themselves or through representatives. In mediation, a neutral third party helps parties to resolve a dispute but does not have the power to impose a solution. Conciliation is similar to mediation, but the neutral acts as a “go-between” for the parties who never meet. Conciliation can also be defined as the process of bringing parties to a point where they can work out their dispute without the aid of a third party. In arbitration, the parties agree to submit their dispute to a neutral party whom they have selected to make a decision regarding the outcome of the dispute. An arbitrator’s decision can be non-binding or binding. Arbitration is used extensively in labour relations because it is less formal, faster, and less expensive than the judicial process. Adjudication is a formal process conducted by a judge or jury in a court of law. Decisions are reached on points of law, rather than on moral right or wrong.

Alternative Dispute Resolution

      Alternative dispute resolution (ADR) represents a move away from adjudicative methods of dispute resolution. Scimecca defines it as “those non-coercive processes which are alternatives to the formal legal or court system” (1993:212). The beginnings of ADR are usually traced back to the 1960’s in the United States and are rooted in a desire for harmony, efficiency, and access to justice. Advocates of ADR believed it would promote compromise over win-lose outcomes, replace confrontation with harmony and consensus, minimize state control, and empower communities to achieve harmonious resolutions to social conflicts. They sought to minimize the use of professionals in favour of substantive and procedural norms that were common-sensical and non-bureaucratic. In contrast to adjudicative processes, informal processes were to be private, voluntary, consensual, and focused on reconciling relationships.

       Advocates of ADR believed it would promote compromise over win-lose outcomes, replace confrontation with harmony and consensus, minimize state control, and empower communities to achieve harmonious resolutions to social conflicts.

      There are two interpretations regarding the growth of ADR in the United 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