The British Columbia Ministry of Attorney General's alternative dispute resolution policy : in search of court reform or social transformation
Date
1998
Authors
Gowe, Gregory Thornton
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Abstract
In May, 1995 the B.C. Ministry of Attorney General released an alternative dispute resolution (ADR) policy statement. ADR refers to any non-violent dispute resolution process that does not involve going to court. Well-known ADR processes include mediation, arbitration, and negotiation.
In releasing an ADR policy statement the government placed itself in the centre of a heated debate as those active in the ADR field are deeply divided over several fundamental questions pertaining to its use. This stems primarily from the fact that there are two ADR models: (1) the "court reform model" and (2) the "social transformation" model. (98) The government has not explicitly stated which model its ADR policy is based on.
This thesis is an exploration of the two models, the inherent tension between them, and an analysis of which model is driving the provincial government's ADR agenda. The methods of analysis are a content analysis of the academic literature on ADR and a series of personal interviews with a representative panel of ADR stakeholders/experts in B.C.
I conclude that the government's ADR policy is primarily based on the court reform ADR model. The implications of a policy based on this model are two-fold. First, due to the inevitable formalization of court reform ADR processes, this policy is not a long-term solution. The ADR system will, most likely, soon be overcome by regulation , bureaucratization and professionalization, similar to the courts. Second, it is problematic in an immediate sense in that it creates dispute resolution programs that compromise or ignore due process without offering comparable protections to disputants.