Question Five - Do we need clarity on an umbrella term for the processes described in this paper? Can several umbrella terms be used? If so, what terms?
See (1). Clarity develops as parties discuss which process they wish to use, making informal contacts about the rules they want to govern in their decision-making.
The umbrella terms to which reference is made are:
A for Alternative (and its many alternative adjectives)
D for Dispute, and
R for Resolution.
Who is the ‘we’ in this question?
The first series of questions that needs to be asked and answered is: Do we need umbrella terms? Who do they benefit? Who uses them?
Practitioners, service providers, academics etc tend to be wedded to umbrella terms, but it is not so clear that this is the case with users of services, such as mediation.
The preferred approach would be to phase out use of umbrella terms and say what we mean. If we are referring to mediation, or arbitration, or whatever, then say so.
Law Society of SA
ADR is the umbrella term and covers a hybrid process.
Section 21 of the Federal Magistrates Act defines primary dispute resolution processes as “procedures and services for the resolution of disputes otherwise than by way of the exercise of the judicial power of the Commonwealth” including:
Neutral evaluation; and
Case appraisal; and
Section 14E of the Family Law Act provides that primary dispute resolution methods means procedures and services for the resolution of disputes out of court, including:
Counselling services provided by family and child counsellors; and
Mediation services provided by family and child mediators; and
Arbitration services provided by arbitrators.
Therefore, courts and agencies that deliver family law services are familiar with and use the umbrella term PDR.
In other contexts, the umbrella term alternate dispute resolution or ADR is used and the term is generally understood within the ‘ADR community’. The ADR/PDR terminology has created some confusion in the field. The use of further umbrella terms will add to this confusion.
Law Institute of Victoria
Please refer to the comments in our introductory paragraphs of the submission. [see page 21]
NSW Law Society
While the term ADR is the common umbrella term to describe processes which are alternatives to litigation, litigation itself falls towards the extreme end of the continuum described by Moore. If lawyers were to recognise this, the adoption by them of other of these processes would present less of a quantum leap thereby gradually reshaping their thinking to accept these processes and integrate them into their existing style of practice. By a process of continuous improvement, ADR will progress beyond our current objectives and vision. The A in ADR may provide an element of risk, increasing resistance to its implementation and creating feelings of dislocation among lawyers who feel excluded from the ADR vision. It is therefore desirable that NADRAC give consideration to dropping the A from the umbrella term “ADR”. The words “Dispute Resolution” are increasingly becoming recognised as a generic term encompassing ADR processes.
It is assumed that to dichotomise the umbrella term would add confusion and detract from the analysis of a continuum which in itself is a useful term in this context. The favoured term is the dispute resolution continuum. This implies a common thread of outcome through a process of debate which commences with individuals and moves towards third party intervention which becomes increasingly coercive at the extreme. This will encourage diversity and creativity in practice while providing clarity for practitioners and disputants.
Alternatively the term “Primary Dispute Resolution” as used in the 1995 amendments to the Family Law Act would be an appropriate substitute for “Alternate Dispute Resolution”. The reality is that most disputes are settled by negotiation using discussion, correspondence, meetings, mediation, conciliation, facilitation, counselling, etc. They are therefore the primary means of resolving disputes. With the cost of legal services forever increasing, in a civilized democracy the legal system should encourage parties to use these methods of primary dispute resolution before resorting to litigation or at least should use them at an early stage in the litigation process. Most legal systems in Australia seem to accept and encourage this. If all governments in Australia worked together to create a national Mediation Act or a national Primary Dispute Resolution Act, these principles with uniform definitions would promote the acceptance of Primary Dispute Resolution. A cultural change might bring about a recognition that Primary Dispute Resolution must be attempted before Court proceedings are started, except in exceptional circumstances (eg where urgent interlocutory Court relief is required.)
It has also been suggested that Dispute Management or DM would be a suitable umbrella term. The umbrella term ‘restorative conferencing’ is used in the criminal justice context and distinguishes this process from parallel ADR processes used in civil matters.
Question Six - How should the terms ‘dispute’ and ‘resolution’ be defined or described? Is the purpose of ‘ADR’ necessarily to ‘resolve’ a ‘dispute’?
See (1 & 5). The purposes of ADR are many: relationship and situation improvements for example.
For those who contend that the purpose of ‘ADR’ is not necessarily to resolve disputes, there is no need to define or describe the terms ‘dispute’ and ‘resolution’ in the context of the acronym ADR, or in the context of the phrase ‘Alternative Dispute Resolution”, or even ‘dispute resolution’.
This does not prevent individual mediators from using and defining the terms ‘dispute’ and ‘resolution’ when appropriate ie when we are in fact using mediation for the purposes of dispute resolution. (As the discussion paper mentions at 10, there are many definitions of relevant terms available in the theoretical literature. We have the means to distinguish a ‘dispute’ from a concern, grievance, complaint and so on and we have the means to distinguish ‘resolution’ from prevention, handling, management, and containment. Attached is a section from the Dispute Systems Design chapter from the Dispute Resolution Title of The Laws of Australia. It refers to some of the relevant literature and definitions. The author of this particular sub-title is Bobette Wolski. On the other hand, if mediation is being used for another purpose, for example, to assist parties to reach a decision in relation to the terms of a contract, why not say so.
Extract from Dispute Systems Design Sub-title
The Laws of Australia, 13 Dispute Resolution
 ‘Dispute Systems Design’ (DSD) is the popular term used to describe the process of designing and implementing a ‘dispute resolution system’. The terms ‘conflict management systems design’ and ‘conflict management system’ are preferred by some authors1 with the words ‘conflict’ and ‘management’ both intended to be of wider scope than ‘dispute’ and ‘resolution’.2 The terms ‘dispute systems design’ and ‘dispute resolution system’ are used here, not only because of their popularity, but also for simplicity and for the sake of consistency with Ury, Brett and Goldberg’s book Getting Disputes Resolved: Designing Systems to Cut the Costs of Conflict,3 which is regarded as the seminal work in this field. However the word ‘dispute’ is used to embrace concerns, problems, claims, and complaints (all of which have the potential to escalate into disputes when they are unsatisfied or rejected and pursued),4 disputes, and conflict. The word ‘resolution’ is also used for the sake of simplicity but again, it is used in the widest sense.5 The word ‘handling’ is occasionally substituted for the word ‘resolution’.
See for example Ury W L, ‘Conflict Resolution among the Bushmen: Lessons in Dispute Systems Design’ (1995) 11 Negotiation Journal 379 at 380; Costantino C A and Merchant C S, Designing Conflict Management Systems: A Guide to Creating Productive and Healthy Organizations (1996) Jossey-Bass Publishers, San Francisco at 62; and Rahim A M, Managing Conflict in Organizations (1986) Praeger Publishers, New York at 24-25.
See for example Tillett who notes that there is a tendency to use ‘conflict’ as a generic term covering the full range of forms that unresolved conflict may take: Tillett G, Resolving Conflict: A Practical Approach (1991) Sydney University Press, Sydney at 5; and Landa and David who use the term ‘management’ to encompass the concepts of prevention, settlement, resolution, containment and more: Landa D, ‘Dispute Management Systems Design’, paper presented at the Second International Conference in Australia on Alternative Dispute Resolution, LEADR, Sydney, 9-10 October 1993 at 4; and David J, ‘Designing Dispute Resolution Systems’, paper presented at the Second International Mediation Conference, Adelaide, Sth Aust, 18-20 January, 1996 at 62.
Ury, Brett and Goldberg coined the phrase ‘dispute systems design’: see Ury W L, Brett J M, and Goldberg S B, Getting Disputes Resolved: Designing Systems to Cut the Costs of Conflict (1993) Program on Negotiation at Harvard Law School, Cambridge, Mass. at xvii. (This is a soft cover reprint of the original book, published by Jossey-Bass Publishers, San Francisco 1989.)
Felstiner W L F, Abel R L and Sarat A, ‘The Emergence and Transformation of Disputes: Naming, Blaming, Claiming’ (1980-81) 15 Law and Society Review 631.
This is not to dismiss the importance of a system’s ‘operating definition of resolution’. Zinsser provides the following example of such a definition: ‘that the initiator of the case chooses not to move it to a later level or reinitiate any options from the earlier levels’: see Zinsser J W, ‘Employment Dispute Resolution Systems: Experience Grows But Some Questions Persist’ (1996) 12 Negotiation Journal 151 at 160. The definition chosen may make an enormous difference when it comes to evaluating system outcomes.