research on alternative dispute resolution

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27 Alternative Dispute Resolution

Faris E. Nasrallah is a Solicitor of the Senior Courts of England and Wales. He earned his LLB (first class) from the School of Oriental and African Studies (SOAS) at the University of London and his LLM from the University of Cambridge. Nasrallah is specialized in international arbitration, having worked for leading US and international law firms in London and Dubai. He has represented clients in complex and high-value international arbitration proceedings and has extensive advocacy experience. He is currently leading a research project on the relationship between theory and practice in international arbitration at the Max Planck Institute for Social Anthropology in Halle, Germany, and in 2019 established the International Arbitration Working Group as part of the Max PlanckLaw Network. With experience as counsel, expert, and arbitrator, his international arbitration practice focuses on commercial, construction, energy, and telecommunications disputes, with specialist knowledge of Middle Eastern laws.

• Published: 08 September 2021
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Alternative dispute resolution (ADR) is an umbrella term to describe an array of social and institutional methods for resolving disputes. These methods offer individual and collective disputants a panoply of forum shopping options, each taking place in different intrinsic, inherited, and constructed cultural contexts. While not immediately apparent to lawyers or anthropologists, different ADR methods, including arbitration and mediation, in fact constitute the principal global tools utilized to resolve most international and interstate disputes concerning matters of investment, commerce, and industry. To grasp the magnitude of this necessarily requires both lawyers and anthropologists to break the barriers of habitual thinking about the nature and extent of their disciplinary and interdisciplinary work. This chapter outlines the prevalence and pervasiveness of ADR processes and practices both past and present, using ADR as an interface for reconceptualizing interdisciplinary boundaries, appraising the relationship between theory and practice, and understanding emerging social and legal practices.

Alternative Dispute Resolution (ADR) is an umbrella term to describe an array of social and institutional methods for resolving disputes. These methods offer individual and collective disputants a panoply of forum shopping options, each taking place in different intrinsic, inherited, and constructed cultural contexts. While not immediately apparent to lawyers or anthropologists, different ADR methods in fact constitute the principal global tools utilized to resolve most international and interstate disputes concerning matters of investment, commerce, and industry. To grasp the magnitude of this necessarily requires both lawyers and anthropologists to break the barriers of habitual thinking about the nature and extent of their disciplinary and interdisciplinary work.

So vast are the offshoots of these different ADR methods as branches of the ADR tree, 1 it is arguably most accurate to apophatically describe ADR by alluding to what it is not; namely the referral or submission to dispute resolution processes in national court systems. 2 Yet, in a phenomenon which underscores the pervasive adoption of ADR methods, national court systems themselves increasingly incorporate ADR-style processes within the scope of their respective mandates, either through pre-action protocols, 3 settlement chambers, 4 or by directly adopting standing arbitration, mediation, and conciliation provisions for certain types of disputes. 5 Beyond bearing the fruits of prospective institutional efficiency, and offering a gateway to a monopoly over justice, ADR processes permeate almost every aspect of our social interactions, both as normative structures that inform ideal behaviour and, where contraventions arise, as forums for navigating disputes from cradle to grave.

Newcomers to interdisciplinary law and anthropology dialogue will observe that the voluminous literature proliferated on the uptake and possible profligacy of ADR methods tends to focus on societies outside the citadels of dominant frameworks of reference. 6 Such ADR systems, often underpinned by ‘customary laws’ and ‘customary practices’, can be easily misunderstood as being governed by an entirely separate set of epistemological norms than those applicable to ADR processes conducted within established legal centres and officiated by dominant legal cultures. 7 This chapter suggests that a more holistic view of law and anthropology, through the prism of ADR, can reveal shared tendencies among states, societies, organizations, and individuals alike to seek to resolve disputes on their own terms and in forums that derive their authority from shared normative understandings.

To illustrate certain adaptations of these shared ADR norms, this chapter utilizes ADR as an interface for considering three spheres of law and anthropology relations: (i) the conceptual boundaries between law and anthropology; (ii) convergences between theory and practice; and (iii) understanding emerging social and legal practices. A number of research recommendations are included within each section. In line with the broad chapter title, this contribution seeks to capture, in some small part, the pervasiveness and prevalence of what are ostensibly innumerable micro-legal systems operating globally at every level of social organization, and crucially in the interstices between them.

ADR and the conceptual boundaries between law and anthropology

The boundaries between law and anthropology have yielded considerable conceptual enquiries, ‘from those of the nineteenth-century protolegal anthropologists like Henry Maine, Lewis Morgan, Johann Jakob Bachofen, and John McLennan’ ( Goodale 2017 : 5), through to works on the sociology of law ( Ehrlich 1936 [1912]) , sharp critiques on the nature of anthropologists’ work ( Nader 1972 ), the inherent limits of law ( Allott 1980 ), and contemporary comparative law enquiries ( Menski 2006 ). ADR processes have been central to these enquiries, providing indispensable interfaces for elaborating the contours of law and anthropology respectively, as well as their intrinsic combination.

Sally Falk Moore’s work on the relationship between state and non-state law through ADR processes, resulting in her ground-breaking contribution that law itself constituted a ‘semi-autonomous social field’ ( Moore 1973 ), was followed by lesser known but equally valuable contributions on the utility of ADR for exploring the relationship between indigenous and received law ( Chiba 1989 ), 8 and the theory of legal pluralism (Chiba 1989 , 1993 ). 9 Amidst the continued relevance of ADR processes to both fields of study, the respective attentions of law and anthropology have since pivoted or been directed into the practice of human rights and international law, the former focusing on the emergence of transnational legal and moral forms ( Berman 2012 ; Goldman 2007 ), and the latter on the role of transnational norms in shaping social practices ( Goodale 2006 ; Merry 2006 ).

More than twenty-five years after the establishment of the ‘ADR movement’ in the United States (US) in 1976, 10 resulting in a dramatic surge of ADR in the private domain in the US, 11 Laura Nader delivered a scathing reproach against the movement, stating, ‘ADR is not a universally desired improvement, but is often coercive and serving as a mechanism of pacification’ ( Nader 2002 : 37). According to Nader, ‘the force and ideological nature of the movement’ presented institutional gaps such as the absence of published judgments, thereby preventing common law-style legal development, 12 which had consequently been dodderingly accepted or overlooked by lawyers and legal elites ( Nader 2002 : 46). 13

Readers should avoid confusing this critique with an assumption that ADR techniques comprise a symmetrical and codified menu of forum shopping options, each being susceptible to procedural overlords and predictable outcomes. Notwithstanding the possible profligacy of institutionalized ADR processes in the US, the ongoing arbitration practices convened by sharia tribunals, rabbinical courts, and Christian panels within the US justice systems ( Broyde 2017 ) continue to challenge notions about ubiquitous state legal hegemony while also raising questions about arbitrability, 14 applicable law, 15 and enforcement of awards in religiously administered US arbitrations ( Bambach 2009 ).

The US aside, ADR processes, in both spiritual and substantive forms, become interfaces for the active relationships between law and society, law and culture (Cotterrell 1997 , 2006 ; Felstiner et al. 1980 ; Nelken 2006 , 2009 , 2014 ; Provost 2017 ; Rosen 2006 ), and law and religion ( Ferrari and Cristofori 2010 ; Sandberg 2015 ), thereby posing forceful conceptual questions about the nature of law and anthropology respectively, as well as the boundaries between them. A note must be made here on the conceptual impact of different linguistic and cultural terminology regarding the identification and procedural references inherent to varying ADR techniques in different social, national, transnational, and institutional contexts. Lawyers and anthropologists may find similar definitions of their disciplinary ADR terminology in different cultural settings, although ready-made equivalent terms for ‘law’, ‘rules’, ‘order’, and ‘anthropology’ can diverge significantly or indeed be absent altogether. 16

Implicit in the design of any research work using ADR processes is a need to locate and appraise the conceptual impact that such processes might have on the principles underlying the research. Having selected their ADR technique and geographic and social contexts of choice, researchers may wish to consider the extent to which ADR processes can inform the underlying theories of law and anthropology, questions over the monopoly over justice and access to it, as well as the position of ADR in inter-jurisdictional conflicts ( Nasrallah 2018b ) and economic inequalities between states, societies, and individuals. Of further conceptual relevance is the potential for disputants to utilize ADR forums as relative safe spaces outside the guise of official legal forums, which in turn can accentuate identity markers as well as avoid different layers of institutional hierarchy.

For anthropologists entering the world of ‘law’, the very concept may seem beholden to irretractable battles for primacy ( Dworkin 1986 ; Hart 1961 ), which are accentuated by certain ADR processes, although seldom subject to deeper enquiry. 17 For lawyers entering the world of anthropology, the discipline might appear to be existentially preoccupied ( Comaroff 2010 ) with persistently proving its relevance ( Ingold 2018 ; Moore 2001 ). The discipline of anthropology, perhaps trapped in a constant state of becoming, fears going out of fashion, while the concept of law tends to bask in officialdom, reaffirming its perennial in-vogue status. The interface of ADR can offer participants in the law and anthropology dialogue conceptual vantage points beyond disciplinary boundary disputes, commanding a genuine need for in-depth assessment and intimate knowledge gathering of social-legal-normative behaviours that inform and construct ADR processes in different cultural contexts.

ADR and convergences between theory and practice

It has long been argued that systematized legal development takes place in so-called hard cases ( Dworkin 1975 ; Hart 1961 ), in formal court room settings. 18 Notwithstanding the difficulties of obtaining reported decisions in different ADR fora, ADR processes and outcomes can equally provide fertile ground for understanding legal and social developments. As such, ADR processes compel us to consider not only the identity and context of the ADR technique and social actors involved, but also the technical practice issues at play during and after the lifespan of the proceedings. These practice issues include, but are not limited to, the capacity and nature of the disputing parties and decision-makers, the procedural and substantive issues in dispute, whether any decisions rendered are final and binding, the scope and procedure for any appeals, how parties might enforce those decisions, as well as their real-life consequences.

Insofar as this is the case, and given that ADR processes and practices persist almost irrespective of theoretical debates, ADR naturally becomes an interface for understanding the relationship between theory and practice. Some anthropologists remain wary of interacting with lawyers and judges or developing any sort of anthro-praxis, preferring instead to ‘adopt a position of critical distance from the professional practice of both law and anthropology’ ( Burke 2011 : 2). Perhaps understandably, this general aversion would appear to be a consequence of anthropology’s dark colonial past, which in turn spawned internal guilt among anthropologists as well as a distrust among those subjected to or the subjects of their work ( Dirks 2004 ; Lewis 1973 ). There are, however, suggestions that preparing future anthropologists for consultancy work can evolve the commonly held notion that anthropology is a purely theoretical discipline ( Foblets 2015 ).

At the turn of the twenty-first century, it was observed that ‘In the 1960s, the possibility of anthropologists regularly teaching in law school would have been anathema, but since the 1960s there has been enormous change and a blurring of disciplines’ ( Nader 2002 : 38). This observation hinted at changes in systemic attitudes towards exchanges between lawyers and anthropologists, at least in North American educational institutions. Outside of the classroom, convergences between law and anthropology practice have been hastened by the incorporation of ADR processes into national legal systems, 19 the development of new legal service industries to accommodate ADR processes, 20 and a corresponding professionalization of anthropology practice, both in the types of research being funded and conducted ( Kloos 2019 ; Sloane-White 2017 ) and in the application of cultural and other expertise in different dispute settings (Holden 2011 , 2019 , 2020 ). 21

By way of concrete examples of the theory-practice interface, when considering community justice theories and indigenous forms of dispute resolution, researchers may turn to the Gacaca courts in Rwanda, a contemporary use of traditional ADR practices as a method for seeking peace and reconciliation following the Rwandan genocide outside the jurisdiction of the Rwandan criminal courts, national courts of other states, or the UN-mandated International Criminal Tribunal for Rwanda ( Hankel 2019 ; Sullo 2018 ; Wielenga and Harris 2011 ). For those concerned with the conceptual utility of law and dispute settlement processes as pre-emptive alternatives to war, researchers might assess the value of the phrase ‘arbitrating for peace’ ( Franke et al. 2016 ), and more broadly the use of arbitration in territorial and boundary disputes between states ( Copeland 1999 ). 22 Similarly, those interested in conflict management and resolution theories can shed light on the growing institutionalization of different methods of international conflict management through ADR processes of negotiation, mediation, and what are sometimes referenced loosely as ‘legal approaches’ ( Greig et al. 2019 ).

In this respect, as well as being invoked to ameliorate or avoid conflicts, ADR processes can become interfaces for measuring the applicability of different theoretical postulations and their capacity to inform new debates about the practical application of law and anthropology. By way of example, in the field of international arbitration, there are noticeable gaps between representations of practice from those within the international arbitration community ( Gaillard 2015 ) and from those surveying the community from the outside (Dezalay and Garth 1996 , 2002 ). As international arbitration becomes the leading global ADR technique for resolving commercial, trade, and investment disputes, its relationships with and within different national legal orders can become increasingly strained unless managed correctly. Arbitrations as pop-up transnational legal transplants of sorts can potentially provoke a variety of legal culture clashes with far-reaching consequences, revealing as much about the unstated norms deployed by different actors in daily arbitration practice as they do about the construction of narratives around the profession. Due to both educational and professional divergences, the gaps between these narratives are often underscored by a lack of awareness among legal academics and practitioners to consult the vast sociolegal and legal anthropology literature on ADR. Conversely, anthropologists remain largely reticent of practitioner guides and black-letter law resources on ADR (Association for International Arbitration 2009a , 2009b ; Ingen Housz 2011 ).

Researchers drawing on the law and anthropology combination to study ADR processes might consider how their findings will reflect in points of theory within both disciplines. It is preferable that such considerations are borne in mind prior to or at the outset of any participant observation or other fieldwork method. Collecting data from ADR processes can be cumbersome and time-consuming, often resulting in limited access to certain documents or disputants which provide only part of the broader issues at play. Researchers may have to navigate various data collection limitations, regarding confidentiality ( Poorooye and Feehily 2017 ; Rogers 2006 ), hierarchical or institutional oversight ( Ward 2007 ), business or social secrecy ( Dore 2006 ), the involvement of legal or other representatives in the proceedings and their own professional or social duties and interests, potential fragility and frictions between the disputing parties, questions over the authority of the ADR setting and its decision-makers ( Tupman 1989 ), the technical issues in dispute, and the language of the parties and the proceedings ( Harpole 2016 ).

While there is a growing body of ethnographic literature on the conduct and practices within courtroom settings ( French 2009 ; Latour 2009 ; Lynch 1997 ; Scheffer 2010 ), there is scope for further ethnographic work in the boardrooms, business centres, and hospitality facilities where most hearings are conducted in more formal ADR processes. 23 To this end, researchers should not be deterred by the above-mentioned potential limitations, and should consider whether it is possible, practical, or desirable to collect data through inside access and observational participation in meetings, hearings, and other engagements surrounding a particular ADR process. Perhaps closer attention to these methodological and research design issues is needed to unlock future debates about the relationship between theory and practice through the interface of ADR.

ADR and understanding emerging social and legal practices

By focusing on ADR processes in different cultural contexts, researchers can capture and understand emerging social and legal practices. When viewed through the law and anthropology combination, such ADR processes can draw out facets of normative social and legal behaviour. Taking ADR as an interface for capturing these trends, it is possible to explore the continuity and re-emergence of ancient forms of dispute settlement, dispute avoidance strategies, and religious dispute governance, the impact of transnational, globalized, and online ADR practices, as well as the role of state law in managing such movements. By reference to certain examples, it is suggested that new or reconstituted ADR processes and practices have an in-built capacity to guide and inform research on the emerging social and legal practices of individual and collective disputants. The following ADR examples are purposefully drawn from a vast canvas of historical, regional, religious, and cultural settings, and intend to offer users of this handbook multiple windows through which to consider the different applications of ADR, as well as their prevalence and pervasiveness. It is perhaps this apparent ubiquity that calls into question the accuracy of the term ‘alternative’ when situating ADR processes.

Whereas the development of most civilizations was coupled with the espousal or acquisition of different laws and procedures for dispute settlement, contemporary ADR practices can be used to assess the re-emergence or re-constitution of these ancient and historical methods. For example, it has been suggested that contemporary Indian societies continue to rely on classical Hindu law concepts such as daṇḍa (punishment), vyavahāra (dispute resolution), and sadācāra (good behaviour), which require disputants and those administering dispute processes to remain ‘in constant consideration of situational relativity’ ( Menski 2003 : 31–2). In these situations, ‘the deeper purpose of disputation and settling disputes, as processes of ascertaining dharma , is to protect macrocosmic and microcosmic order, not just to decide disputes’ ( Menski 2003 : 549–50). 24

In the Arab world, a number of ancient Arab customary law concepts and processes continue to shape social and institutional interactions and dispute settlement throughout the modern Middle East. Tahkeem (arbitration) is an ancient Arab customary law technique deriving from the Arabic word for judgment or hukum , and is rooted as a concept in pre-Islamic Arab societies. Arbitration was adopted through the passage of Christianity and Islam, the Prophet himself sitting as an arbitrator ( Hallaq 2005 : 24), in various Arab empires and enlightenments as well as in the periods of Ottoman and European imperialism in the Middle East, retaining etymological continuity throughout. This is equally reflected in the Talmudic legal tradition, where arbitration is afforded pride of place in Jewish law ( Steinberg 2000 ), and continued recourse to which is most poignantly underscored in contemporary arbitration and mediation services offered by various Beth Din institutions. 25

Whether in the form of dedicated civil procedure code provisions or stand-alone legislation, arbitration resiliently takes its place within the dispute resolution tapestry of modern Middle Eastern states and Arab societies in personal, private, and public law disputes ( El-Aḥdab and El-Aḥdab 2011 ; Najjar 2018 ). As dispute resolution practitioners working in the Middle East know all too well, facets of Arab customary law often invade the landscape of modern arbitration practice, whereby the desire to retain ostensible or substantive compliance with sharia principles can influence party engagement and cooperation as well as national court enforcement of arbitral awards and other settlement decisions.

Sulh (the act of resolving conflict, creating peace and reconciliation) is a pre-Islamic method of resolving disputes outside the guise of formal state processes, which continues to exist in various forms across the Middle East. 26 In contemporary Arab societies the concept of sulh is most commonly used as an informal dispute resolution mechanism for resolving family, village, or sectarian disputes outside the reach of state authorities. The technique of sulh is typically administered by a mokhtar (in Arabic literally meaning the ‘chosen one’), denoting a local or village representative seeking authority from within their community to preserve social harmony and community relations and to resolve disputes invariably arising from breaches of personal or family honour ( Nasrallah 2011 : 201).

Tawseet (mediation), which has a different framework of reference in traditional and modern Arab customary law, continues to be applied in contemporary disputes, either as an escalation towards arbitration or as a self-sufficient process in its own right. 27 The coalescing norms and virtues inherent in these Arab customary law concepts and processes continues to inform not only contemporary ADR practices, but also approaches to diplomacy and international relations throughout the region. It is worth noting that similarly prevalent and resilient forms of ancient ADR in other customary and institutional law settings have become areas of interest for comparative law ( Menski 2006 ) and commercial law enquiries ( Kidane 2012 ).

With respect to dispute avoidance, ADR practices and processes can shed light on existing and emerging strategies deployed by individuals, communities, corporations, and states in order to avert the actual or perceived hostilities or inequities of formal dispute resolution settings. As Werner Menski (2003 : 560) lucidly summarizes:

Postmodern states everywhere in South Asia now realize that they cannot perform the various large-scale functions they claimed to exercise. The modern state manifestly took on too much, and now has to admit this. The resulting gap points to a need to engage in private and public postmodern re-education about the value of self-controlled ordering. While the state continues to offer a formal hierarchical framework for dispute settlement and adversarial claims, the deeper message of India’s postmodern state law seems to be that it does not want to be used. Contemporary postmodern Hindu law operates, then, on the basis of a reworked symbiosis of central state law and local legal orders, within an overarching higher order.

At micro or interstate levels, dispute avoidance strategies through recourse to ADR can be useful for considering the interstices between unofficial law systems and national legal orders. Taking for example Chinese communities in the UK, where social exclusion ( Chau and Yu 2001 ) collided with expected assimilation to ‘English core values’ ( Poulter 1986 ), a particular cultural practice of formal dispute avoidance has occurred, notwithstanding a Chinese minority presence in the UK for over 150 years ( May 1978 ). Whereas it is known that UK Chinese community organizations ‘offer social, cultural, educational and mediation services in conversation with state public services’ ( Kwan et al. 2007 : 528), due to a lack of resources, it has been suggested that such organizations ‘might eventually turn from being what they are at present, “weak” organizations, into “silent” ones. The result is simply the further exclusion and misunderstanding of the UK Chinese people’ ( Kwan et al. 2007 : 529). These active ADR processes and interactions evidently raise questions over the reach of official law systems, and how certain communities navigate their relationship with state power, that would appear to offer ripe raw materials for law and anthropology research.

Regarding religious ADR practices, academic attention has focused on minority religious communities and personal law systems, both in the European context with emphasis on Islamic ADR practices ( Bano 2012 ; Cesari 2014 ; Sona 2016 , 2018 ), but also with respect to Christian minority ADR practices in the Middle East ( Elsässer 2019 ; Engelcke 2018 ) and South Asia ( Chaterjee 2010 ). Religious ADR practices might also be assessed for their role in establishing internal authorities and systems of hierarchical power, which can have the capacity to construct and ringfence minority identities and communities ( Keshavjee 2013 ). As such, there remains scope for up-to-date appraisals of religious ADR practices among majority religious communities in Europe 28 and North America ( Canon Law Society of America 1969 ; Fitzgerald and Fitzgerald 1993 ; King et al. 1997 ). Perhaps of interest for future law and anthropology research are the influences of religiously inspired indigenous and inherited ADR practices on state systems and micro-jurisdictions across the vast hybrid legal expanses of different regions in Africa, which continue to be characterized by loose references to the entire continent ( Nolan-Haley 2015 ).

With a view to ADR-related social trends, dominant voices have been heard in internationalized ‘access to justice’ aspirations, partly as a result of the ADR movement established in the US, but also in respect of broader social developments towards open government and increased transparency ( Bianchi and Peters 2013 ). Conversely, the pervasive uptake of ADR processes invites further study into trends of increased litigiousness in different social, religious, and commercial contexts, even in legal cultures where participation in formal court proceedings is generally frowned upon or associated with dishonour or loss of face ( Ginsburg and Hoetker 2006 ). When recognized ADR practitioners scoff at the fact that ‘The only clubs missing in arbitration are those reflecting social class divides. The Proletarian Arbitration League has yet to be created’ ( Gaillard 2015 : 9), the very mention of that fact appears to lay down the gauntlet for such enquiries. Whether in respect of contractual defaults or other breaches relating to the global financial crisis or Covid-19 pandemic, the default assumption can hardly be that national court systems will readily accept or be capable of solely undertaking the heavy lifting of voluminous caseloads arising from such disputes.

Concerning the role of the state in ADR practices and processes, obvious conceptual questions emerge on monopolies over justice and the limits of state law. Absent express national policies towards ADR practices as a whole, a large number of states invariably opt to encourage the development of independent ADR micro-systems for specific industries and communities, that seek judicial assistance in procedural and enforcement matters, if and when required. 29 Alternatively, trends towards the institutionalization and judicialization of ADR practices have been recognized, whereby ADR processes are increasingly influenced by or brought under the direct guise of national court systems ( Trakman and Montgomery 2017 ). 30 To reaffirm the applicability of official state law, national legal systems ordinarily seek to regulate ADR practices, sometimes asymmetrically between different communities or types of disputes ( Pearl and Menski 1998 : 68–73). The regulatory powers of the state can relate to existential matters of state control, but equally to pressing financial or capacity concerns reflected in economic measures to streamline efficient and cost-effective dispute management.

Necessarily, states are also concerned with avoiding or punishing corruption in ADR practices, as well as the deployment of guerrilla tactics by parties in different local and international ADR forums ( Wilske and Horvath 2013 ). To this end, there remains the constant threat of abuse and manipulation of traditional customary forms of ADR 31 as well as their institutionalized contemporary adaptations ( Reisman and Skinner 2014 ). In respect of non-commercial disputes, state harnessing of indigenous forms of ADR appears to be a more intuitive process, distinct from the issues faced by states seeking or requested to officiate or recognize non-indigenous ADR practices. For example, considerable attention has been paid to the social, cultural, and institutional consequences of officially regulating sharia councils in Britain ( Al-Astewani 2019 ; Bano 2012 ), which remains an open question. By way of contrast, in Iraq, Iraqi Law No. 13 of 2011, the Law of Mokhtars, 32 readily codifies the role of mokhtars , 33 the criteria for their candidacy and requirement for state licensing, 34 the term of their appointments, 35 their capacity to serve in certain disputes, 36 entitlement to remuneration, 37 and duties towards state agencies and confidentiality ( Nasrallah 2011 : 201–2). 38

At a global legal level, ADR processes offer canvasses for assessing transnational social and legal practices and the internationalization of certain types of disputes and resolution techniques. Whether in respect of ‘hybrid legal systems as legal laboratories’ ( Nasrallah and Blanke 2020 ), or legal transplants and implants, ADR processes and practices can shine light on emerging transnational communities comprising disputants, professional practitioners, and other stakeholders, as well as the norms and behaviours that these communities create and adhere to in culture-specific environments. Regarding less permanent importations of special tribunals, panels, and committees, including those under the auspices of international organizations, conventions, and treaties, constitutional law questions also arise about the jurisdictional efficacy of such forums and their compliance with national or religiously informed public order requirements.

The emergence of online dispute resolution (ODR), which has already been adopted into national court systems ( Abdel Wahab et al. 2012 ), and at the European level in respect of online retail disputes, 39 has consequences for both governing bodies and disputing parties, which largely remain unexplored. ODR processes offer a window for the law and anthropology combination to assess these developments, particularly in a post Covid-19 world, where transnational face-to-face meetings have been suspended indefinitely and largely replaced by online interactions. Whereas certain ADR communities have moved faster than others in response to these developments, 40 developing new and existing ODR procedural rules and practices for convening meetings, hearings, and the taking of witness evidence fulfils only part of the mandate awaiting a brave new world ( Piers and Aschauer 2018 ).

This chapter has endeavoured to offer insight into the prevalence and pervasiveness of ADR processes and practices both past and present. Using ADR as an interface for reconceptualizing interdisciplinary boundaries, appraising the relationship between theory and practice, and understanding emerging social and legal practices, it is suggested that ADR processes present fertile ground for novel conceptual and empirical research in law and anthropology, as well as in their combination. Focusing on the correlative questions that these interfaces raise, is it also suggested that lawyers, anthropologists, and those in between can utilize a cross-section of global ADR fora as canvasses for mapping the shared proclamations and proclivities of individuals, communities, corporations, and states in different dispute scenarios. Crucially, insofar as these shared norms are self-evident or capable of being revealed, they indicate that there is immense scope and value in combining both fields of study.

That there remains no universally agreed definition of law underscores its amorphous nature and is arguably the reason for its ubiquity. The concept of law is able to permeate fluidly between different social and institutional interactions, reasserting itself at different points in time, whether in the form of defined principles, authoritative decision-making capacities, or institutions. When appropriately contextualized, ADR processes invite assessments of the changing faces of law, its flexible nature, and the consequences of its permeations at different stages of state-administered or state-sanctioned dispute processes. With a more nascent institutional history, the discipline of anthropology more readily accepts what it can and cannot achieve or claim to achieve. This has not stopped the discipline from evolving to incorporate different types of professional expertise, which are increasingly applied in various dispute settings. Insofar as anthropologists lean towards engaging with that which is rare and exceptional over that which is commonplace, they are perhaps best placed to chart the existence of ADR processes that fall outside of state control entirely. Unconventional, non-institutionalized ADR practices and processes will most likely remain alluring for anthropologists pursuing the law and anthropology combination.

This chapter has alluded to the fact that cultures, societies, and legal systems invariably employ elements of ADR processes, whether administered socially or institutionally, in accordance with religious or other normative principles, in the context of family disputes, commercial disputes, or in disputes between states. This leaves researchers interested in ADR processes with an incredibly wide gambit of options. Perhaps daunting at first, this apparent innumerability can be refined through recourse to relationships between theory and practice, which are actualized by different ADR processes. This should encourage researchers in both disciplines, as well as those pursuing a combination, to undertake novel, technical, and conceptually challenging work on local, transnational, institutionalized, and informal ADR processes, including those closest to home.

The concept of the ‘dispute tree’ was recently deployed as a contemporary sociolegal revaluation of the ‘dispute pyramid’ metaphor devised by the Civil Litigation Research Project in the 1980s to broadly describe dispute resolution processes (see Albiston et al. 2014 : 105–31).

Roberts and Palmer (2005 : 44) define the contemporary ADR movement as follows: ‘A general aversion to state-based formal justice, or religious, political, ethnic or territorial forces, or a felt need to refurbish courts and other agencies of formal justice are perhaps the most common contexts—sometimes enclaves—within which ideologies and practices of informal justice have most readily taken hold.’

Such pre-action protocols were introduced in England and Wales following the fundamental review of the civil justice system undertaken by Lord Woolf between 1994 and 1996, which resulted in the publication of the Access to Justice, Interim Report in 1995 and Access to Justice, Final Report in 1996 (Woolf 1995 , 1996 ). For a contemporaneous review of what are commonly referred to as the ‘Woolf reforms’, see Zuckerman 1996 . For a more recent appraisal of the Woolf reforms in the broader context of civil justice, see Genn 2010 .

See e.g. Dubai in the United Arab Emirates, which established a Centre for Amicable Settlement of Disputes (the ‘Dubai Courts CASD’) in 2009, pursuant to Dubai Law No. 16 of 2009. Aimed at encouraging early settlement of disputes without resorting to formal litigation in the Dubai Courts, the Dubai Courts CASD became operational in 2011 and is one of a number of special tribunals established within the court system of Dubai. By way of further example, special tribunals were established pursuant to Dubai Law No. 26 of 2007, to resolve disputes between landlords and tenants; Dubai Decree No. 56 of 2009, for the settlement of cheque disputes relating to real estate transactions; and Dubai Decree No. 26 of 2013, which established the ‘Rent Disputes Settlement Centre’ to hear rent disputes.

Uniquely among other Middle Eastern jurisdictions, Bahrain has integrated arbitration into the standing judicial infrastructure of the state. Pursuant to Bahraini Decree No. 30 of 2009, on the Bahrain Chamber for Economic, Financial and Investment Dispute Resolution (amended by Legislative Decree No. 65 of 2014) (‘Bahraini Decree No. 30 of 2009’), the Bahrain Ministry of Justice entered into a partnership with the American Arbitration Association, creating the Bahrain Chamber for Dispute Resolution-American Arbitration Association (BCDR-AAA). Under Art. 9 of Bahraini Decree No. 30 of 2009, the Court of the BCDR has primary jurisdiction over the Bahraini Courts to hear disputes brought by or against financial institutions licensed by the Central Bank of Bahrain or of an international commercial nature, where the claim value exceeds 500,000 Bahraini Dinars (about $1.3 million). In Germany, pursuant to a joint initiative of the German National Anti-Doping Agency and the German Arbitration Institute, the German Court of Arbitration for Sport was established on 1 January 2008 as an independent arbitration court for sports-related matters, with arbitration proceedings taking place on the basis of specific DIS Sports Arbitration Rules, see < https://www.disarb.org/en/tools-for-dis-proceedings/dis-rules > accessed 7 February 2021.

See e.g. Bohannan 1957 , 1997 ; Chanock 1985 ; Gluckman 1955 , 1997 ; and the locations chosen in Benda-Beckmann 1981 and Nader and Todd 1978 . More recently and in the same vein, see Anying and Gausset 2017 on Northern Uganda. The well-trodden ‘rural village’, ‘closed community’ methods for anthropological fieldwork hardly need adumbrating.

For an assessment of the relationship and power differentials between ‘Western’ and ‘non-Western’ approaches to law, see Haldar 2008 and Ruskola 2013 . When the disciplines of law and anthropology are combined to address normative systems in dominant legal cultures, these often focus on formal court systems and institutional dispute resolution arenas (see e.g. Latour 2009 , and more recently Niezen and Sapignoli 2017 ).

For Masaji Chiba, the interconnected attributes of law were best described as (i) ‘official law’, defined as ‘the legal system authorized by the legitimate authority of a country’ ( Chiba 1986 : 319); (ii) ‘unofficial law’ as ‘the legal system which is not officially authorized by the official authorities, but authorized in practice by the general consensus of a certain circle of people’, and which has ‘a distinct influence upon the effectiveness of official law’ ( Chiba 1986 : 336); and (iii) ‘legal postulates’, which Chiba distinguished from legal rules, as ‘the system of values and ideals specifically relevant to both official and unofficial law in founding and orienting the latter’ ( Chiba 1986 : 351).

Masaji Chiba developed an integrated model of law consisting of three dichotomies: ‘official v. unofficial law’, ‘legal postulates v. legal rules’, and ‘indigenous v. transplanted law’ ( Chiba 1993 ).

The ADR movement is generally considered to have been founded following the National Conference on the Causes of Popular Dissatisfaction with the Administration of Justice, convened in St. Paul, Minnesota, in 1976, often referred to as the ‘Pound Conference’ (see Stone 2004 and Nader 2002 ).

According to Katherine Stone, 92,000 arbitration requests were filed with the American Arbitration Association in 1998 alone ( Stone 2004 provides further statistics on the uptake of ADR in the US). Whereas such ADR processes ordinarily apply to trade, civil, and commercial disputes, the US Supreme Court has confirmed its extension to include recourse to arbitration in consumer disputes (see AT&T Mobility LLC v. Concepcion Et Ux , United States Supreme Court Case No. 09–893, decided on 27 April 2011).

On the increasing proliferation and value of published court decisions relating to arbitration in the United Arab Emirates, see Nasrallah 2018a .

This in part seems to have influenced Laura Nader’s subsequent writing on the ‘Americanization of international law’ and US-led transnational legal processes, which she regarded as tools of hegemonic cultural and economic domination (see Mattei and Nader 2008 ). See also Roberts and Palmer (2005 : 43–78), who recognized that the contemporary ADR movement faced ‘stiff and sometimes fierce resistance’, and explained the main strands of this criticism.

By way of example, the Beth Din of America based in New York ‘serves the North American Jewish community as a forum for the adjudication of commercial, communal and matrimonial conflicts’, see < http://bethdin.org/wp-content/uploads/2015/07/ArbBrochure.pdf > accessed 2 February 2021.

The Sharia Board of America offers arbitration in family matters as well as dispute resolution services ‘related to business partnerships and various other issues posing challenges to the community’, such disputes to be ‘resolved and arbitrated in the light of the Qur’an & Sunnah’, see < https://shariahboard.org/darulqadha > accessed 2 February 2021.

References to ADR processes and forum shopping options in established legal centres tend to be confined to an institutionalized cartography including arbitration, mediation, conciliation, adjudication, and med-arb (see e.g. Stone 2004 , 2009 ). On the different aspects of translation in anthropology, see Montgomery 2000 ; Rubel and Rosman 2003 ; and Tymoczo and Gentzler 2002 .

It is notable that even Thomas Hobbes, one of the foremost historical proponents of the sovereignty of law, was sufficiently moved by the prevalence of arbitration practice to repeatedly mention arbitrators as the proprietors of ‘another justice’ ( Hobbes 1651 : 92–6).

Ronald Dworkin defined ‘hard cases’ broadly as ‘those cases in which the result is not clearly dictated by statute or precedent’ ( Dworkin 1975 : 1057), and which as a result relied on the positivist theory of adjudication, that judges use their discretion to decide hard cases. According to Dworkin, the theory of adjudication, a far from morally perfected process, failed to resolve the dilemma of judicial decision-making and was susceptible to political and social influences as well as the process of judicial selection ( Dworkin 1975 ). Attention should be paid not to conflate such references to ‘judicial adjudication’ with procedural forms of ‘ADR adjudication’, as is adopted in international tribunals ( Jacob 2012) and increasingly in construction industry disputes (see e.g. Hibberd and Newman 1999 ). On the practice of rule-following and the adaption of rules in decision-making, see McDowell 1981 and Twining and Miers 2010 .

For an example from the jurisdiction of England and Wales, and in accordance with the Arbitration Act 1996, see the Practice Guidance: Arbitration in the Family Court , issued by Sir James Munby, President of the Family Division on 23 November 2015, available at < https://www.judiciary.uk/publications/practice-guidance-arbitration-in-the-family-court/ > accessed 2 February 2021.

See the Chartered Institute of Arbitrators, a not-for-profit charitable organization that operates through a global network of forty-one branches and which offers education, training, professional qualifications, and practitioner guidance resources on arbitration, with members from a broad range of occupational and academic backgrounds and disciplines (see < https://www.ciarb.org > accessed 2 February 2021). More recent examples of the burgeoning ADR services sector include the Family Law Arbitration Financial Scheme, launched by the Institute of Family Law Arbitrators in 2012 to provide arbitration for financial and property disputes in the family law context (see < http://ifla.org.uk/ > accessed 2 February 2021), and the Centre for Effective Dispute Resolution, a London-based mediation and ADR body, founded as a non-profit organization in 1990 to promote mediation and ADR through accredited training courses offered to individual practitioners, law firms, and banks (see < https://www.cedr.com/ > accessed 2 February 2021).

For a broader assessment of the anthropologist as an expert witness, see Foblets and Renteln 2009 ; Renteln 2004 ; and Vetters and Foblets 2016 . To capture the historical trajectory of such mandates, see also Geertz 1973 and Rosen 1977 . By way of example of this practice in the UK, social anthropology scholar-practitioners Anthony Good and Tobias Kelly each attested to having acted as a country expert in over 500 and 150 asylum and immigration appeals respectively as part of a ‘best practice guide’ drafted for experts ( Good and Kelly 2013 ).

Notable examples include the Rann of Kutch Arbitration , concerning the dispute between India and Pakistan over the Rann of Kutch Indo-Pakistan Western Boundary; the Award rendered on 19 February 1968 (United Nations Report of International Arbitral Awards, XVII: 1–576); the Taba Arbitration , concerning the location of boundary markers in Taba between Egypt and Israel; the Award rendered on 29 September 1988 (United Nations Report of International Arbitral Awards, Vol. XX, 1–118); and a host of territorial boundary disputes concerning the international boundaries within the Arabian peninsula, involving Bahrain, Iran, Iraq, Jordan, Kuwait, Oman, Qatar, Syria, Saudi Arabia, the United Arab Emirates, and Yemen, and which are commonly referenced as the Arabian Boundary Disputes . A repository of documents relating to the Arabian Boundary Disputes has been published in a twenty-volume set comprising 18,000 pages ( Schofield 1992 ).

For further reference on conducting qualitative research and the use of ethnography as a tool in legal research, see Griffiths 2005 and Travers 2001 .

According to Werner Menski, it follows that ‘ vyavahāra cannot properly just be read as ‘civil law’. It is first of all a tool of dharma, a technique to bring about order and balance with minimal interference from outside agents, such as judges and the state. The concept of vyavahāra may look secular to an outside observer. But from an insider’s perspective, it is not only religious, in the broad sense in which everything in the Hindu cosmic vision could be said to have a religious dimension …, but is at the same time also social, legal, and everything else that may be relevant in any specific scenario of dispute settlement. A diversity-focused, postmodern interpretation of this ancient concept confirms therefore that, long before the current postmodern age, ancient Hindus were able to handle plurality and interdisciplinarity in a way that reflects the integrated and central nature of dharma as self-controlled ordering rather than technical “law”. Rather than being treated as skilfully constructed manuals for ancient litigators, texts like the Nāradasmṛti should therefore be read as expressions of concern for the protection of this dharmic self-controlled order’ ( Menski 2003 : 549–50).

Notably, the London Beth Din offers arbitration services for commercial disputes, stating that ‘the decision (Award) given by the Beth Din has the full force of an Arbitration Award and, if necessary, may be enforced by the civil courts. The arbitration process taking place at the Beth Din is known as a Din Torah. Arbitrations take place within the framework of the Arbitration Act 1996 and therefore conform to procedural aspects of English arbitration law’ (see < https://www.theus.org.uk/article/arbitration-dinei-torah > accessed 3 February 2021). The English family law courts have gone as far as recognizing an arbitral award delivered by a New York Beth Din, thereby considering interactions between Jewish, US, and English law (see Re AI and MT [2013] EWHC 100 (Fam)).

It has been suggested that arbitration itself is an integral part of Sulh , which consequently represents an umbrella term for ADR in Arab customary law ( Keshavjee 2013 : 66–9).

See e.g. the Mediation Rules adopted by the Emirates Maritime Arbitration Centre, itself established in accordance with Dubai Decree No. 14 of 2016.

For references, see various contributions published in the Ecclesiastical Law Journal since 1987.

This form of equidistance is prevalent in the approach of most national legal systems towards the practice of local and international commercial arbitration, by reference to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards signed in New York on 10 June 1958, and the UNCITRAL Model Law adopted by the United Nations Commission on International Trade Law on 21 June 1985, and amended most recently in 2006.

This has been particularly apparent in the global trend towards establishing international commercial courts as a way of importing the perceived efficiency and expertise of ADR processes into national court systems. See e.g. the establishment of the Dubai International Financial Centre Courts in 2004, Civil and Commercial Court of the Qatar Financial Center, Qatar International Court in 2009, Abu Dhabi Global Market Court in 2013, Singapore International Commercial Court in 2015, China International Commercial Court in 2018, Netherlands Commercial Court in 2019, and Frankfurt Chamber for International Commercial Disputes in 2019.

In Palestine, the indigenous ADR technique of sulh , historically reserved for Palestinian Jews, Muslims, Christians, Druze, and Bedouins ( Cook and Jabbour 1993 : 17), found itself subjected to abuse and manipulation by individual and institutional agents of settler colonialism after 1948. In a particular case involving the murder of Ahmed Qablawi in 1954 by a settler in the village of Saffourieh in Galilee, the settlers’ use of sulh against the will of Qablawi’s family as a method of avoiding criminal trial and punishment, despite applications for state involvement, has been described as ‘forgiveness offered under extreme duress’ ( Hoffman 2009 : 243).

Issued on 18 July 2011 by the Presidential Council of Iraq.

Defined in a legal context as a ‘local or village representative, often an elder or wise male, whose place among other Mokhtars in a given region or locality, is to preserve social harmony, develop community relations and arbitrate on matters including but not limited to personal disputes, escalations of local violence and matters concerning individual or family honour’ ( Nasrallah 2011 : 201).

Articles 3 and 4 of Iraqi Law No. 13 of 2011, the Law of Mokhtars.

Article 5 of Iraqi Law No. 13 of 2011, the Law of Mokhtars.

Articles 6 and 7 of Iraqi Law No. 13 of 2011, the Law of Mokhtars.

Article 9 of Iraqi Law No. 13 of 2011, the Law of Mokhtars.

Article 10 of Iraqi Law No. 13 of 2011, the Law of Mokhtars.

See the European ODR platform provided by the European Commission for the resolution of consumer complaints and disputes over goods or services purchased via online stores, retailers, and traders in the European Union (EU), Iceland, Liechtenstein, and Norway, pursuant to Regulation No 524/2013 of the European Parliament and of the Council, dated 21 May 2013.

See e.g. the draft ‘Protocol for Online Case Management in International Arbitration’, prepared by the Working Group on LegalTechAdoption in International Arbitration, and circulated in July 2020, available at < https://protocol.techinarbitration.com/p/1 > accessed 4 February 2021.

Abdel Wahab, M. , E. Katsh , and D. Rainey , eds. 2012 . Online Dispute Resolution: Theory and Practice. A Treatise on Technology and Dispute Resolution . The Hague: Eleven International Publishing.

Google Scholar

Google Preview

Al-Astewani, A.   2019 . ‘The Legal Framework for Regulating Shariah Councils in the UK: A Potential Model for Ireland?’ In K. O’Sullivan , ed. Minority Religions under Irish Law , 193–216. Leiden: Brill.

Albiston, C. R. , L. B. Edelman , and J. Milligan . 2014 . ‘ The Dispute Tree and the Legal Forest ’. Annual Review of Law and Social Science 10: 105–31.

Allott, A.   1980 . The Limits of Law . London: Butterworths.

Anying, I. W. and Gausset, Q.   2017 . ‘ Gender and Forum Shopping in Land Conflict Resolution in Northern Uganda ’. The Journal of Legal Pluralism and Unofficial Law 49(3): 353–72.

Association for International Arbitration, ed. 2009 a. Chinese Arbitration: A Selection of Pitfalls . Antwerpen: Maklu.

Association for International Arbitration. 2009 b. Alternative Dispute Resolution in the Energy Sector . Antwerpen: Maklu.

Bambach, L. A.   2009 . ‘ The Enforceability of Arbitration Decisions Made by Muslim Religious Tribunals: Examining the Beth Din Precedent ’. Journal of Law and Religion 25(2): 379–414.

Bano, S.   2012 . Muslim Women and Shari’ah Councils: Transcending the Boundaries of Community and Law . London: Palgrave Macmillan.

Benda-Beckmann, K. von.   1981 . ‘ Forum Shopping and Shopping Forums: Dispute Processing in a Minangkabau Village in West Sumatra ’. The Journal of Legal Pluralism and Unofficial Law 13(19): 117–59.

Berman, P. S.   2012 . Global Legal Pluralism: A Jurisprudence of Law Beyond Borders . Cambridge: Cambridge University Press.

Bianchi, A. and A. Peters , eds. 2013 . Transparency in International Law . Cambridge: Cambridge University Press.

Bohannan, P.   1957 . Justice and Judgment Among the Tiv of Nigeria . London: Oxford University Press.

Bohannan, P.   1997 . ‘Ethnography and Comparison in Legal Anthropology’. In L. Nader , ed. Law in Culture and Society , 401–18. Berkeley: University of California Press.

Broyde M. J.   2017 . Sharia Tribunals, Rabbinical Courts, and Christian Panels: Religious Arbitration in America and the West . Oxford: Oxford University Press.

Burke, P.   2011 . Law’s Anthropology: From Ethnography to Expert Testimony in Native Title . Canberra: ANU E Press.

Canon Law Society of America. 1969. ‘ Due Process in Canon Law ’. The Catholic Lawyer 15(4): 278–307 ( Report of the Ad Hoc Committee on Due Process to the Canon Law Society of America , 21 October 1969, Cleveland, Ohio).

Cesari, J. , ed. 2014 . The Oxford Handbook of European Islam . Oxford: Oxford University Press.

Chanock, M.   1985 . Law, Custom, and Social Order: The Colonial Experience in Malawi and Zambia . Cambridge: Cambridge University Press.

Chaterjee, N.   2010 . ‘ Religious Change, Social Conflict and Legal Competition: The Emergence of Christian Personal Law in Colonial India ’. Modern Asian Studies 44(6): 1147–95.

Chau, C. M. and W. K. Yu . 2001 . ‘ Social Exclusion of Chinese People in Britain ’. Critical Social Policy 21(1): 103–25.

Chiba, M.   1986 . Asian Indigenous Law: In Interaction with Received Law . London/New York: Routledge and Kegan Paul.

Chiba, M.   1989 . Legal Pluralism: Toward a General Theory through Japanese Legal Culture . Tokyo: Tokai University Press.

Chiba, M.   1993 . ‘ Legal Pluralism in Sri Lankan Society: Toward a General Theory of Non-Western Law ’. Journal of Legal Pluralism and Unofficial Law 33: 197–212.

Comaroff, J.   2010 . ‘ The End of Anthropology, Again: On the Future of an In/Discipline ’. American Anthropologist 112(4): 524–38.

Cook, T. C., Jr . and E. J. Jabbour , eds. 1993 . Sulha. Palestinian Traditional Peacemaking Processes . Israel: House of Hope.

Copeland, C. S.   1999 . ‘ The Use of Arbitration to Settle Territorial Disputes ’. Fordham Law Review 67(6): 3073–3108.

Cotterrell, R.   1997 . ‘The Concept of Legal Culture’. In D. Nelken , ed. Comparing Legal Cultures , 13–31. Aldershot: Dartmouth.

Cotterrell, R.   2006 . ‘Law in Culture’. In R. Cotterrell , ed. Law, Culture and Society: Legal Ideas in the Mirror of Social Theory , 97–108. Aldershot: Ashgate.

Dezalay, Y. and B. G. Garth . 1996 . Dealing in Virtue. International Commercial Arbitration and the Construction of a Transnational Legal Order . Chicago: University of Chicago Press.

Dezalay, Y. and B. G. Garth . 2002 . The Internationalization of Palace Wars: Lawyers, Economists and the Contest to Transform Latin American States . Chicago: University of Chicago Press.

Dirks, N. B.   2004 . ‘ Edward Said and Anthropology ’. Journal of Palestine Studies 33(3): 38–54.

Dore, L. K.   2006 . ‘ Public Courts versus Private Justice: It’s Time to Let Some Sun Shine in on Alternative Dispute Resolution ’. Chicago-Kent Law Review 81(2): 463–520.

Dworkin, R.   1975 . ‘ Hard Cases ’. Harvard Law Review 88(6): 1057–1109.

Dworkin, R.   1986 . Law’s Empire . Cambridge, MA: The Belknap Press of Harvard University Press.

Ehrlich, E.   1936 [1912]. Fundamental Principles of the Sociology of Law . Cambridge: Harvard University Press.

El-Aḥdab, A. E. and J. El-Ahdab . 2011 . Arbitration with the Arab Countries. Third Revised and Expanded Edition . Alphen aan den Rijn: Wolters Kluwer Law & Business.

Elsässer, S.   2019 . ‘ The Coptic Divorce Struggle in Contemporary Egypt ’. Social Compass 66(3): 333–51.

Engelcke, D. 2018. ‘Adjudicating Christian Family Law in Jordan: Legal Borrowing Across Religious Lines?’ Paper delivered as part of the conference ‘Law, Islam and Anthropology’ at the Max Planck Institute for Social Anthropology, 9–10 November.

Fitzgerald, J. M. and M. L. Fitzgerald . 1993 . ‘ Mediation: A Systemic Alternative to Litigation for Resolution of Church Employment Disputes ’. St. Thomas Law Review 5: 507–22.

Felstiner, W. , R. Abel , and A. Sara . 1980 /1981. ‘ The Emergence and Transformation of Disputes: Naming, Blaming, Claiming ’. Law & Society Review 15(3/4): 631–54.

Ferrari, S. and R. Cristofori , eds. 2010 . Law and Religion in the 21st Century: Relations between States and Religious Communities . Farnham: Ashgate.

Foblets, M.   2015 . ‘ Preparing Future Anthropologists for Consultancy Work ’. Social Anthropology 23(4): 492–509.

Foblets, M. and A. D. Renteln , eds. 2009 . Multicultural Jurisprudence: Comparative Perspectives on the Cultural Defense . Oxford: Hart Publishing.

Franke, U. , A. Magnusson , and J. Dahlquist . 2016 . Arbitrating for Peace: How Arbitration Made a Difference . Alphen aan den Rijn: Kluwer Law International.

French, R.   2009 . ‘Ethnography in Ordinary Case Law’. In M. Freeman and D. Napier , eds. Law and Anthropology: Current Legal Issues , Vol . 12 , 126–42. Oxford: Oxford University Press.

Gaillard, E.   2015 . ‘ Sociology of International Arbitration ’. Arbitration International 31: 1–17.

Geertz, C.   1973 . The Interpretation of Cultures . New York: Basic Books Inc.

Genn, H.   2010 . The Hamlyn Lectures 2008: Judging Civil Justice . Cambridge: Cambridge University Press.

Ginsburg, T. and G. Hoetker . 2006 . ‘ The Unreluctant Litigant? An Empirical Analysis of Japan’s Turn to Litigation ’. The Journal of Legal Studies 35(1): 31–59.

Gluckman, M.   1955 . The Judicial Process among the Barotse of Northern Rhodesia . Manchester: Manchester University Press.

Gluckman, M.   1997 . ‘Concepts in the Comparative Study of Tribal Law’. In L. Nader , ed. Law in Culture and Society , 349–73. Berkeley: University of California Press.

Goldman, D. B.   2007 . Globalisation and the Western Legal Tradition: Recurring Patterns of Law and Authority . Cambridge: Cambridge University Press.

Good, A. and T. Kelly . 2013 . Expert Country Evidence in Asylum and Immigration Cases in the United Kingdom: Best Practice Guide . Edinburgh: The University of Edinburgh.

Goodale, M.   2006 . ‘ Toward a Critical Anthropology of Human Rights ’. Current Anthropology 47 (3): 485–511.

Goodale, M.   2017 . Anthropology and Law: A Critical Introduction . New York: New York University Press.

Greig, J. M. , A. P. Owsiak , and P. F. Diehl . 2019 . International Conflict Management . Cambridge/Medford: Polity Press.

Griffiths, A.   2005 . ‘Using Ethnography as a Tool in Legal Research: An Anthropological Perspective’. In R. Banakar and M. Travers , eds. Theory and Methods in Socio-Legal Research , 113–31. Oxford: Hart Publishing.

Haldar, P.   2008 . Law, Orientalism and Postcolonialism: The Jurisdiction of the Lotus-Eaters (Discourses of Law) . First edition. Abingdon and New York: Routledge-Cavendish.

Hallaq, W. B.   2005 . The Origins and Evolution of Islamic Law . Cambridge: Cambridge University Press.

Hankel, G.   2019 . ‘ Gacaca Courts ’. Max Planck Encyclopedia of Public International Law, Oxford Public International Law (available online at: < https://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1667 >).

Harpole, S.   2016 . ‘ Language in Arbitration Procedure: A Practical Approach for International Commercial Arbitration ’. Contemporary Asia Arbitration Journal 9(2): 273–300.

Hart, H. L. A.   1961 . The Concept of Law . Oxford: Oxford University Press.

Hibberd, P. and P. Newman . 1999 . ADR and Adjudication in Construction Disputes . Oxford/Sussex: Wiley-Blackwell.

Hobbes, T.   1651 . Leviathan or the Matter, Forme, & Power of a Common-wealth Ecclesiasticall and Civill . Andrew Crooke: St. Pauls Church-yard.

Hoffman, A.   2009 . My Happiness Bears No Relation to Happiness: A Poet’s Life in the Palestinian Century . New Haven: Yale University Press.

Holden, L. , ed. 2011 . Cultural Expertise and Litigation . Abingdon: Routledge.

Holden, L. , ed. 2019 . Cultural Expertise and Socio-Legal Studies. Special Issue in Studies of Law, Politics, and Society . Bingley: Emerald Insight.

Holden, L.   2020 . ‘ Cultural Expertise and Law: An Historical Overview ’. Law and History Review 38: 1–18.

Ingen-Housz, A. , ed. 2011 . ADR in Business: Practice and Issues Across Countries and Cultures . Alphen aan den Rijn: Kluwer Law International.

Ingold, T.   2018 . Anthropology: Why It Matters . Cambridge/Medford: Polity Press.

Jacob, M.   2012 . ‘Precedents: Lawmaking through International Adjudication’. In A. von Bogdandy and I. Venzke , eds. International Judicial Lawmaking. Beiträge zum ausländischen öffentlichen Recht und Völkerrecht (Veröffentlichungen des Max-Planck-Instituts für ausländisches öffentliches Recht und Völkerrecht) , vol. 236, 35–68. Berlin/Heidelberg: Springer.

Keshavjee, M. M.   2013 . Islam, Sharia and Alternative Dispute Resolution: Mechanisms for Legal Redress in the Muslim Community . London/New York: I.B. Tauris & Co. Ltd.

Kidane, W.   2012 . China-Africa Dispute Settlement: The Law, Economics and Culture of International Arbitration . Alphen aan den Rijn: Kluwer Law International.

King, H. T., Jr . and M. A. Le Forestier . 1997 . ‘ Papal Arbitration: How the Early Roman Catholic Church Influenced Modern Dispute Resolution ’. Dispute Resolution Journal (Summer): 74–81.

Kloos, D.   2019 . ‘ Experts beyond Discourse: Women, Islamic Authority, and the Performance of Professionalism in Malaysia ’. American Ethnologist 46(2): 162–75.

Kwan, C. , B. Cole , and G. Bowpitt . 2007 . ‘ Beyond Silent Organizations: A Reflection of the UK Chinese People and Their Community Organizations ’. Critical Social Policy 27(4): 509–33.

Latour, B.   2009 . The Making of Law: An Ethnography of the Conseil d’Etat . Cambridge/Malden: Polity Press.

Lewis, D.   1973 . ‘ Anthropology and Colonialism ’. Current Anthropology 14(5): 581–602.

Lynch, M.   1997 . ‘Preliminary Notes on Judges’ Work: The Judge as a Constituent of Courtroom Hearings’. In M. Travers and J. Manzo , eds. Law in Action Ethnomethodological and Conversation Analytic Approaches to Law , 99–130. Aldershot: Dartmouth Publishing Co.

Mattei, U. L. and L. Nader . 2008 . Plunder: When the Rule of Law is Illegal . Malden, MA: Blackwell.

May, J. P.   1978 . ‘The Chinese in Britain 1860–1914’. In C. Holmes , ed. Immigrants and Minorities in British Society , 111–24. London: Allen and Unwin.

McDowell, J.   1981 . ‘Non-Cognitivism and Rule-Following’. In S. Holtzman and C. M. Leich , eds. Wittgenstein: To Follow a Rule , 141–62. London/Boston: Routledge and Kegan Paul.

Menski, W.   2003 . Hindu Law: Beyond Tradition and Modernity . Oxford: Oxford University Press.

Menski, W.   2006 . Comparative Law in a Global Context: The Legal Systems of Asia and Africa . Second edition. Cambridge: Cambridge University Press.

Merry, S. E.   2006 . Human Rights and Gender Violence: Translating International Law into Local Justice . Chicago: Chicago University Press.

Moore, S. F.   1973 . ‘ Law and Social Change: The Semi-Autonomous Social Field as an Appropriate Subject of Study ’. Law & Society Review 7(4): 719–46.

Moore, S. F.   2001 . ‘ Certainties Undone: Fifty Turbulent Years of Legal Anthropology, 1949–1999 ’. The Journal of the Royal Anthropological Institute 7(1): 95–116.

Montgomery, S. L.   2000 . Science in Translation: Movements of Knowledge through Cultures and Time . Chicago: University of Chicago Press.

Nader, L.   1972 . ‘ Up the Anthropologist: Perspectives Gained from Studying Up ’. Washington, D.C.: ERIC Clearinghouse.

Nader, L.   2002 . ‘ A Wide-Angle on Dispute Management ’. Willamette Journal of International Law & Dispute Resolution 10(1): 37–46.

Nader, L. and F. T. Harry , eds. 1978 . The Disputing Process: Law in Ten Societies . New York: Columbia University Press.

Najjar, N.   2018 . Arbitration and International Trade in the Arab Countries . Leiden: Brill Nijhoff.

Nasrallah, F.   2011 . ‘ Country Survey: Iraq ’. Yearbook of Islamic and Middle Eastern Law 16: 197–207.

Nasrallah, F.   2018 a. ‘ Book Review: Hassan Arab, Lara Hammoud, Graham Lovett (ed.), Summaries of UAE Court Decisions on Arbitration 2012–2016 Including DIFC Court Decisions (Second Edition), ICC: ICC Services Publication, 2017, 180 p. ’ Yearbook of Islamic and Middle Eastern Law 19: 479–81.

Nasrallah, F.   2018 b. ‘ Article 257 of the UAE Penal Code: Inter-jurisdictional Conflict and the Battleground of Arbitration ’. Yearbook of Islamic and Middle Eastern Law 19: 334–50.

Nasrallah, F. and G. Blanke . 2020 . ‘ Reflections on the Future of Arbitration in Dubai and the Middle East? ’ Transnational Dispute Management 17(4): 1–14.

Nelken, D.   2006 . ‘Rethinking Legal Culture’. In M. Freeman , ed. Law and Sociology , 200–24. Oxford: Oxford University Press.

Nelken, D.   2009 . ‘Blinding Insights? The Limits of a Reflexive Sociology of Law’. In D. Nelken , ed. Beyond Law in Context: Developing a Sociological Understanding of Law (Collected Essays in Law) , 235–54. Burlington: Ashgate.

Nelken, D.   2014 . ‘Legal Sociology and the Sociology of Norms’. In S. P. Donlan and H. L. Urscheler , eds. Concepts of Law. Comparative, Jurisprudential, and Social Science Perspectives , 137–51. Farnham: Ashgate.

Niezen, R. and M. Sapignoli , eds. 2017 . Palaces of Hope: The Anthropology of Global Organisations . Cambridge: Cambridge University Press.

Nolan-Haley, J.   2015 . ‘ Mediation and Access to Justice in Africa: Perspectives from Ghana ’. Harvard Negotiation Law Review 25: 59–106.

Roberts, S. and M. Palmer . 2005 . Dispute Processes: ADR and the Primary Forms of Decision-making . Cambridge: Cambridge University Press.

Pearl, D. and M. Menski . 1998 . Muslim Family Law . Third Edition. London: Sweet & Maxwell.

Piers, M. and C. Aschauer , eds. 2018 . Arbitration in the Digital Age: The Brave New World of Arbitration . Cambridge: Cambridge University Press.

Poorooye, A. and R. Feehily . 2017 . ‘ Confidentiality and Transparency in International Commercial Arbitration: Finding the Right Balance ’. Harvard Negotiation Law Review 22 (Spring): 275–322.

Poulter, S.   1986 . English Law and Ethnic Minority Customs . London: Butterworths.

Provost, R. , ed. 2017 . Culture in the Domains of Law . Cambridge: Cambridge University Press.

Reisman, M. W. and C. Skinner . 2014 . Fraudulent Evidence Before Public International Tribunals: The Dirty Stories of International Law . Cambridge: Cambridge University Press.

Renteln, A. D.   2004 . The Cultural Defense . Oxford/New York: Oxford University Press.

Rogers, C. A.   2006 . ‘ Transparency in International Commercial Arbitration ’. University of Kansas Law Review 54: 1301–37.

Rosen, L.   1977 . ‘ The Anthropologist as Expert Witness ’. American Anthropologist 79: 555–78.

Rosen, L.   2006 . Law as Culture: An Invitation . Princeton: Princeton University Press.

Rubel, P. G. and A. Rosman . 2003 . Translating Cultures: Perspectives on Translation and Anthropology . Oxford and New York: Berg.

Ruskola, T.   2013 . Legal Orientalism: China, the United States, and Modern Law . Cambridge: Harvard University Press.

Sandberg, R. , ed. 2015 . Religion and Legal Pluralism . Farnham: Ashgate.

Scheffer, T.   2010 . Adversarial Case-Making. An Ethnography of English Crown Court Procedure . Leiden: Brill.

Schofield, R.   1992 . Near & Middle East Titles: Arabian Boundary Disputes . 20 Volumes. Cambridge University Press.

Sloane-White, P. 2017. ‘ “Ethnography by Appointment”: Studying Muslims in Corporate and Bureaucratic Settings’. Paper delivered as part of the conference: ‘Conceptualizing the Bureaucratization of Islam and its Socio-Legal Dimensions in Southeast Asia: Anthropological and Transdisciplinary Perspectives’ at the Max Planck Institute for Social Anthropology, 7 September.

Sona, Federica.   2016 . ‘Islām as Legal (Dis-)Empowerment: The Dynamic Interplay between Italian Legal Provisions and Sharīʿah-compliant Norms’. In K. Topidi and L. Fielder , eds. Religion as Empowerment: Global Legal Perspectives . First edition. ICLARS Series on Law and Religion, 21–51. London/New York: Routledge.

Sona, Federica.   2018 . ‘Gli Sharīʿah Councils nel Regno Unito: il ruolo del giudice islamico nell’adattamento interculturale del diritto familiare’. In I. Zuanazzi and M. C. Ruscazio , eds. Le relazioni familiari nel diritto interculturale . First edition. (E-Reprint: Nuovi Studi di Diritto ecclesiastico e canonico 16), 387–411. Tricase: Libellula Edizioni.

Steinberg, G. M.   2000 . ‘ Conflict Prevention and Mediation in the Jewish Tradition ’. Jewish Political Studies Review 12: 3–4.

Stone, K. 2004. ‘Alternative Dispute Resolution: Encyclopaedia of Legal History’. University of California, Los Angeles School of Law Public Law & Legal Theory Research Paper Series, Research Paper No. 04-30, 1–6.

Stone, K.   2009 . ‘Alternative Dispute Resolution’. In S. N. Katz , ed. The Oxford International Encyclopedia of Legal History , Vol. 1: 128–32.

Sullo, P.   2018 . Beyond Genocide: Transitional Justice and Gacaca Courts in Rwanda—The Search for Truth, Justice and Reconciliation . Heidelberg/New York/Dordrecht/ London: Springer.

Trakman, L. and H. Montgomery . 2017 . ‘ The “Judicialization” of International Commercial Arbitration: Pitfall or Virtue? ’ Leiden Journal of International Law 30: 405–34.

Travers, M.   2001 . Qualitative Research through Case Studies . Los Angeles: SAGE Publications.

Tupman, M. W.   1989 . ‘ Challenge and Disqualification of Arbitrators in International Commercial Arbitration ’. The International and Comparative Law Quarterly 38(1): 26–52.

Twining, W. and D. Miers . 2010 . How to Do Things with Rules . Fifth Edition. Cambridge: Cambridge University Press.

Tymoczo, M. and E. Gentzler . 2002 . Translation and Power . Amherst: University of Massachusetts Press.

Vetters, L. and M. Foblets . 2016 . ‘ Culture All Around? Contextualising Anthropological Expertise in European Courtroom Settings ’. International Journal of Law in Context 12(3): 272–92.

Ward, E.   2007 . ‘ Mandatory Court-Annexed Alternative Dispute Resolution in the United States Federal Courts: Panacea or Pandemic? ’ St Johns Law Review 81: 77–97.

Wielenga, C. and G. Harris . 2011 . ‘ Building Peace and Security after Genocide: The Contribution of the Gacaca Courts of Rwanda ’. African Security Review 20(1): 15–25.

Wilske, S. and G. J. Horvath . 2013 . Guerrilla Tactics in International Arbitration . Alphen aan den Rijn: Kluwer Law International.

Woolf, L.   1995 . Access to Justice: Interim Report to the Lord Chancellor on the Civil Justice System in England and Wales . Lord Chancellor’s Department.

Woolf, L.   1996 . Access to Justice: Final Report to the Lord Chancellor on the Civil Justice System in England and Wales . HMSO.

Zuckerman, A. A. S.   1996 . ‘ Lord Woolf’s Access to Justice: Plus ça Change … ’. The Modern Law Review 59(6): 773–96.

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Team-Building Strategies: Building a Winning Team for Your Organization

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What is Alternative Dispute Resolution?

Familiarize yourself with mediation, arbitration, and a hybrid approach using alternative dispute resolution..

By Katie Shonk — on April 4th, 2024 / Dispute Resolution

So, you’re stuck in a serious dispute, but you’re desperate to avoid the hassle and expense of a court case. You’ve heard about alternative dispute resolution but are not sure what it entails.

Claim your FREE copy: Dispute Resolution

Discover how to improve your dispute resolution skills in this free report, Dispute Resolution: Working Together Toward Conflict Resolution on the Job and at Home , from Harvard Law School.

What is alternative dispute resolution? Alternative dispute resolution, or ADR, is a process in which a neutral third party—a mediator or arbitrator—helps parties who are embroiled in a dispute come to an agreement. Mediation and arbitration (see also Arbitration vs Mediation and the Conflict Resolution Process in Alternative Dispute Resolution (ADR) ) are types of alternative dispute resolution because they offer an alternative to litigation.

In this article, we describe the two basic types of alternative dispute resolution in addition to introducing a mediation-arbitration hybrid that may be beneficial in resolving certain disputes.

What is mediation?

In mediation, a neutral third party tries to help disputants come to a consensus on their own. Rather than imposing a solution, a professional mediator seeks to assist the conflicting sides in exploring the interests underlying their positions. Working with parties together and sometimes separately, mediators try to help them hammer out a resolution that is sustainable, voluntary, and non-binding.

Mediators can help disputants break an impasse in the following ways, according to Harvard Law School professor emeritus Frank E. A. Sander:

1. Finding additional information that parties were unwilling to share with each other; 2. Overcoming parties’ resistance to communicating and reaching an agreement by presenting offers to both sides; 3. Contributing impartial, specialized expertise; and 4. Brainstorming options to find a resolution that satisfies both parties.

Mediators can be largely facilitative, engaging primarily in shuttle diplomacy and keeping their own views hidden. Other mediators are more evaluative, offering their own knowledge and opinions to guide parties toward agreement. “The most skilled mediators blend the two techniques according to the nature of the problem and the stage of the mediation,” writes Sanders in an article in the Negotiation Briefings newsletter.

What is arbitration?

In arbitration, the other primary form of alternative dispute resolution, a neutral third party serves as a judge who is responsible for resolving the dispute. The arbitrator listens as each side argues its case and presents relevant evidence, then renders a binding decision.

Disputants can negotiate virtually any aspect of the arbitration guidelines, including whether lawyers will be present and which standards of evidence to use. Arbitrators hand down decisions that are usually confidential, that is binding, and that cannot be appealed. Arbitration tends to be more expensive than mediation but less expensive than litigation.

Disputants can give the arbitrator the authority to determine who will win the case and what the award, if any, will be. The following are three specifics types of arbitration that are available to disputants, as described by Sander:

1. Hi-lo arbitration. In hi-lo arbitration, parties attempt to reduce the risk of making extreme decisions by agreeing ahead of time on the upper and lower limits of any monetary award that the arbitrator will grant. This strategy limits the risk to parties who are worried about giving total control over the outcome to an arbitrator.

2. Final-offer, or baseball, arbitration. In final-offer arbitration, which is often referred to as baseball arbitration because of its use in Major League Baseball contract disputes, both parties present a last, best offer to the arbitrator, who must choose one of the two offers. Because final-offer arbitration typically seems risky, it often gives parties incentives to negotiate a reasonable resolution. As a consequence, it increases disputants’ participation in a negotiation while still ensuring a decision will be reached if they are unable to agree. This type of arbitration is often used in labor negotiations for police officers and firefighters because communities cannot tolerate the risk of a strike arising from an impasse with such essential employees—an argument that some make about professional baseball players as well.

3. Tripartite arbitration. In tripartite arbitration, there are three arbitrators, one named by each party and one chosen by both of them. Tripartite arbitration is useful in highly complex cases where the parties want advice from three individuals with differing expertise (such as a lawyer, a businessperson, and a scientist). It is also used in cases in which the parties lack full confidence in a neutral arbitrator and prefer an arbitrator who will forcefully represent their interests.

What is med-arb?

An often-overlooked alternative dispute resolution process is med-arb, a mediation-arbitration hybrid. In med-arb, disputants hire a neutral mediator. If she is unable to resolve the dispute through mediation, she puts on her arbitration hat and renders a decision, explains Sander.

While this blended process ensures that parties will reach a resolution, it brings with it a certain level of risk. Disputants may be reluctant to be candid with a mediator who could later use the information they share against them in the arbitration phase of the process. They may be able to avoid this objection by having different individuals filled the mediation and arbitration roles, though this solution comes requires additional time and cost.

In sum, mediation, arbitration, and med-arb offer compelling alternatives to litigation the next time you are embroiled in a conflict that seems impossible to resolve on your own.

What are your thoughts on alternative dispute resolution? Leave us a comment.

Related Article: Arbitration vs Mediation: Team-building, ADR, and Using Negotiation Examples from Real Life

Alternative Dispute Resolution (ADR) and Negotiations: Negotiating for the Right Mediator

Examples of Alternative Dispute Resolution (ADR): How Mediation Works

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Alternative Dispute Resolution

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• First Online: 01 January 2017
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• Robert H. Mnookin  

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Alternative dispute resolution (ADR) refers to a set of practices and techniques aimed at permitting the resolution of legal disputes outside the courts. It is normally thought to encompass mediation, arbitration, and a variety of ‘hybrid’ processes by which a neutral facilitates the resolution of legal disputes without formal adjudication. These alternatives to adjudication are advocated on a variety of grounds. Potential benefits are said to include the reduction of the transaction costs of dispute resolution because ADR processes may be cheaper and faster than ordinary judicial proceedings; the creation of resolutions that are better suited to the parties’ underlying interests and needs; and improved ex post compliance with the terms of the resolution.

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Procedural Justice and the Design of Administrative Dispute Resolution Procedures

Dispute Resolution as an Ethical Phantasm

Dispute Resolution

Bibliography.

Arrow, K., Mnookin, R., Ross, L., Tversky, A. and Wilson, R. (eds). 1995. Barriers to Conflict Resolution . New York: Norton.

Google Scholar  

Ashenfelter, O. and Bloom D.E. 1984. Models of arbitrator behavior: theory and evidence. American Economic Review 74: 111–124.

Ayres, I. and Nalebuff, B.J. 1997. Common knowledge as a barrier to negotiation. UCLA Law Review 77: 1631–58.

Brown, J. and Ayres, I. 1994. Economic rationales for mediation. Virginia Law Review 80: 323–401.

Article   Google Scholar  

Farber, H.S. 1980. An analysis of final-offer arbitration. Journal of Conflict Resolution 24: 683–705.

Goldberg, S.B., Sander, F.E.A. and Rogers, N. 1992. Dispute Resolution: Negotiation, Mediation and Other Processes. 2nd edn, Boston, MA: Little, Brown & Co.

Gould, J.P. 1973. The economics of legal conflict. Journal of Legal Studies 2: 279–300.

Hensler, D.R. 1986. What We Know and Don’t Know About Court-Administered Arbitration. Institute of Civil Justice Report No. N-2444 -JCT, Santa Monica, CA: The RAND Corporation (also in Judicature 69 (February–March 1986): 1 ff).

Hensler, D.R. 1992. Court-Ordered Arbitration: An Alternate View . Institute of Civil Justice, Santa Monica, CA: The RAND Corporation.

Kakalik, J.S. et al. 1996. An Evaluation of Mediation and Early Neutral Evaluation under the Civil Justice Reform Act . Institute of Civil Justice, Santa Monica, CA: The RAND Corporation.

Landes, W.M. 1971. An economic analysis of the courts. Journal of Law and Economics 14: 61–107.

Lax, D.A. and Sebenius, J.K. 1986. The Manager As Negotiator . New York: The Free Press.

Mnookin, R.H. 1993. Why negotiations fail: an exploration of barriers to the resolution of conflict. Ohio State Journal on Dispute Resolution 8(2): 235–49.

Mnookin, R.H. and Kornhauser, L. 1979. Bargaining in the shadow of the law: the case of divorce. Yale Law Journal 88: 950–97.

Posner, R.A. 1986. The summary jury trial and other methods of alternative dispute resolution: some cautionary observations. University of Chicago Law Review 53: 366–93.

Shavell, S. 1995 Alternative dispute resolution: an economic analysis. Journal of Legal Studies 24: 1–28.

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© 2002 Palgrave Macmillan, a division of Macmillan Publishers Limited

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Mnookin, R.H. (2002). Alternative Dispute Resolution. In: Newman, P. (eds) The New Palgrave Dictionary of Economics and the Law. Palgrave Macmillan, London. https://doi.org/10.1007/978-1-349-74173-1_14

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The problems and benefits of using alternative dispute resolution

As in-house counsel, you are faced with a myriad of problems every day. They span the gamut from routine contract drafting to bet-the-company litigation. As to the latter, while not every dispute rises to the level of “bet the company,” you likely face a wide range of disputes that need resolution. Your job as in-house counsel is to find the best way to resolve them. 

Fortunately, you have a wide range of options, with litigation being the last resort. And, if you have Practical Law, you will be able to get up to speed quickly on these types of alternative dispute resolution (ADR), including tool kits, forms, checklists, and up-to-date research. 

See Practical Law’s ADR Mechanisms in the US: Overview and Before You Litigate in the US: Practical Considerations Checklist

Types of alternative dispute resolution

While many companies resort to litigation first, the smart in-house lawyer analyzes the situation and brings forward various alternatives to resolve the dispute. In short, they are: 

Phone call – Trying to work out a quick resolution by picking up the phone.

Settlement conference – A more formal process where the parties meet in person to see if they can resolve the issue.

Third-party help

Mediation – A non-binding process where a neutral mediator tries to bring the parties together to reach an agreement on a resolution.  

See Practical Law’s Mediation Tool Kit

Neutral evaluation – Similar to mediation, except the parties receive a written opinion from the neutral evaluator who gives their decision on how the dispute should turn out. It is non-binding.

Summary jury trial – A private process where the parties submit their dispute using a mini-trial and allow a judge or jury to give a binding decision.

Arbitration – A contractual process similar to litigation with binding decisions and limited ability to appeal.  

See Practical Law’s Arbitration Toolkit

Examining the problems and benefits of ADR

While we generally think of alternative dispute resolution as a better way to resolve disputes, ADR has several disadvantages versus traditional litigation. As in-house counsel, considering and presenting the bad with the good is how you best add value to the business. 

See Practical Law’s Arbitration vs. Litigation in the US

Here are the advantages and disadvantages of alternative dispute resolution.

Benefits of ADR

Helps limit the hostility between the parties: Generally with alternative dispute resolution, the parties are both committed to finding a resolution by working together in good faith.

Hear what you need to hear: Clients —including in-house counsel — can get wrapped up tight in their version of the case. Sometimes, hearing from the other side and hearing the thoughts of a neutral third party can get both sides to focus on the realities of the dispute versus the dug-in positioning.

Utilizes a simplified process to resolve issues: ADR generally avoids the formalities and complexity of litigation.

Less expensive: For many reasons, alternative dispute resolution is usually less expensive than traditional litigation.

Flexible: In most instances, the parties can create their own process to help resolve their fight, that is, there’s total flexibility.

Speedier resolution: ADR almost always leads to a faster resolution of the dispute, meaning both parties can get back to business quicker.

Confidentiality: Alternative processes are typically confidential, meaning the fight is out of the public eye and — more importantly — sensitive documents, trade secrets, etc. are protected from disclosure.

Involves experts: Depending on how the parties structure their process, ADR allows for the use of experts to conduct the process or decide critical issues where a judge or jury may not have the time or ability to quickly grasp the nuances of the dispute.

Acknowledges the fact that few cases go to trial: On average, 90% of litigation settles before ever going to trial. If so, then ADR is a simpler, faster, and less expensive way to get the parties to where they are most likely to end up anyway.

Problems with ADR

No appeal: Unless you write an appeal process into your agreement or, for very limited circumstances, a binding ADR procedure lacks the ability to appeal the decision. For example, if you have a single arbitrator and they “go rogue,” your ability to fix it is limited. Likewise, while not binding, a bad mediator can mean a wasted day or two.

Dubious objectivity: Let’s face it, people are people and both sides are striving to find “neutrals” who will best support their position. In many arbitrations, each party picks one arbitrator and the service picks the chair of the panel. You can bet that the arbitrators picked by the parties are pre-disposed to their respective party’s position.

Not binding: Unless the parties are using a binding process, settlement negotiations and mediation are not binding. A party is free to say no or even renege on an agreement reached during the process — in other words, there is no guarantee of resolution.

Expensive: Parties to ADR often make the mistake of thinking that the cost will be minimal; it’s not. It can be very expensive when you consider that, unlike the court system, you must pay for the time of the neutrals, for the meeting/hearing room, for the service (AAA, JAMS, etc.) managing the process, along with your counsel, travel, discovery costs, etc. 

And, if the hearings are broken up due to scheduling conflicts or illness, the cost can be significantly more than either party anticipated. Similarly, summary relief is rarely granted, meaning you will most likely be headed to a hearing regardless of the strength of your summary judgment motion.

Can be a stalling tactic: If the process isn’t binding, one of the parties may use ADR as a way to stall and push the dispute out into the future. And, if the parties are not cooperating, the process can drag on and on and on.

Power imbalances can play out: The party with the most money and power can often sway the process. This imbalance can play out in their favor, which is why Congress recently banned mandatory arbitration for sexual harassment cases.

Lack of precedents: In court, you can generally rely on years of precedents to help determine and guide how the process should turn out. With ADR, however, precedents are merely suggestions in many instances. The arbitrator or summary jury can decide pretty much how they wish, based on whatever evidence they want to rely on and however their sense of “fairness” dictates. 

This can be frustrating to in-house counsel and the business, especially if the other side plays dirty. It is also why you hear “split the baby” when in-house lawyers refer to arbitration.

Compromise is expected: For most paths you must come to the table expecting to compromise your claim — the parties use ADR to avoid protracted litigation. Unfortunately, many business leaders want to roll the dice for complete and total victory; they will not likely get that outcome with ADR. If that is what the business wants, alternative dispute resolution may not be the best path.

As you can see, there is a lot to weigh when considering whether alternative dispute resolution is the right path for your company.  

See Practical Law’s Why Arbitrate (Practice Note)  

One thing that can make it easier is a well-written dispute resolution provision in your contracts. Here you are limited only by your imagination and what the other party will accept. So, it’s better to be as specific as possible as to how disputes will be resolved. Likewise, before agreeing to mediation or other non-binding ADR, get the core principles of how the ADR will proceed in writing.  

See Practical Law’s What’s Wrong with My Arbitration Clause?

It’s one way to ensure the benefits outweigh the disadvantages. With Practical Law, you are only minutes away from having what you need, when you need it when it comes to ADR.  

See Practical Law’s AAA Arbitration (Commercial Rules): A Step by Step Guide

Related insights

Safeguarding your company when legal disputes are on the rise

Effectively handling disputes in house: Doing more with less

Independent contractor agreements: What in-house counsel need to know

Do you know all your options in dispute resolution? Stay current with our expert knowledge and resources to guide you.

Alternative Dispute Resolution Research

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This guide was created for students conducting introductory research in the area of  alternative dispute resolution , commonly called "ADR."  ADR emerged in the 1970s and is defined by  Black's Law Dictionary  as a "procedure for settling dispute by means other than litigations, such as arbitration and mediation."  This guide will identify the major print and online resources available in the Georgetown Law Library.  For an international focus, please consult our International Commercial Arbitration Research Guide .

Getting Started

• Alternative Dispute Resolution from Legal Information Institute at Cornell Law Overview of ADR and menu of relevant Federal primary citations.
• Principles of Alternative Dispute Resolution KF9084 .W353 2016 Provides law and concepts central to ADR (arbitration, negotiation, mediation, and other processes). Includes thorough coverage of arbitration law. The chapters on negotiation and mediation treat the subjects from the perspectives of theory, practice, and legal doctrine.
• Alternative Dispute Resolution (Grenig) Chapters on all alternative dispute resolution methods, including negotiation, mediation and arbitration. Topical dispute areas are covered in separate chapters, including securities, construction, insurance and more. A number of appendices cover pertinent laws, model standards, protocol and forms.

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Updated 11/19 (SB) Updated 5/23 (MK)

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• Last Updated: Jun 12, 2023 1:00 PM
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THE CRITIQUE OF ALTERNATIVE DISPUTE RESOLUTION UNDER ISLAMIC LAW AND ITS RELEVANCE IN THE CONTEMPORARY NIGERIA

The practice of Alternative Disputes Resolution (ADR) such as Ta h k i m (arbitration), S ul h (mediation), ombudsman (Muḥtasib), expert opinion (fatw a ) and other ways of compromising disputes out of court is sanctioned under Islamic law. Muslims need to know the relevance of these ADR processes and their applicability in the settlement of disputes. This is based on the authority that Allah unequivocally stated that S ul h is the best (Qur’an al-Nis a ’: 128). This article offers a critique of ADR processes under Islamic law and the chances of its assimilation in Nigeria. This paper argued that the ADR processes are very significant in the administration of justice. The setback is in its application in Nigeria despite the practice of Shariah in about twelve states in Northern Nigeria. It is opined that individuals, institutions and courts have not manifestly practised ADR processes. This paper adopted a combination of doctrinal, empirical, historical and analytical research methods. We consulted primary and secondary materials, coupled with the use of questionnaires. The paper employed explorative method of data analysis. This paper revealed that the current application of Islamic ADRs is informal and unpopular as it lacks statutory backing in Nigeria. People are desirous to embracing it, which will help improve the administration of justice through the decongestion of court cases. This paper concludes that Islamic ADRs are effective for access to justice in Islam. The paper therefore recommended amongst others that S ul h should be statutorily provided for in Nigeria and adequate Islamic legal training of those involved in the administration of justice should be conducted to avoid an improper practice that will undermine its positive impact on the administration of justice in Nigeria.

'Abd al-Karim Zaydan, Nizam al-Qada’ fi al-Shari‘ah al-Islamiyyah (Baghdad: Matba‘ah al-‘Ani, 1984).

Abdul Hamid El-Ahdab, Arbitration with the Arab Countries (The Netherlands: Kluwer Law International, 1990).

Abdul Hamid Siddiqi, Sahih Muslim Arabic-English, vol. 1 (Delhi: Adam Publishers, 1999).

Agatha Anulika Okeke, ‘Exploring Alternative Dispute Resolution for Settlement of Criminal Disputes in Nigeria’ (Ph.D Thesis, College of Social and Behavioral Sciences, Walden University, 2021).

Aida Othman, And Ṣulḥ is Best: Amicable Settlement and Dispute Resolution in Islamic Law (n.p.: Harvard University, 2005).

Alfa Saka (Imam Gbobi Ogele, Kwara State Nigeria), in interview with the author, 13 December 2009.

Ali Ahmad, Jummai Audi and Ibrahim N. Sada, ‘Resolution of Civil Disputes in Jigawa State Nigeria’, Access to Justice Programme-Research Report, June-August 2003, 11, https://docplayer.net/77986514-Resolution-of-civil-disputes-in-jigawa-state-nigeria.html , accessed on 10 May 2023.

Babatunde Osibanjo, ‘An Appraisal of Arbitration and Litigation Techniques as a Panacea for Fair Justice Administration under the Nigerian Legal System’, Ligitation/Dispute Resolution, 15 April 2016, https://s3.amazonaws.com/documents.lexology.com/fca1fde9-c4e0-478d-93d8-c8825b4edeb2.pdf?AWSAccessKeyId=AKIAVYILUYJ754JTDY6T&Expires=1713395776&Signature=keOo0Td8xOG4ZPim%2BXBThqn1SPg%3D , accessed on 25 January 2024.

Benjamin Balzer and Johannes Schneider, ‘Managing a Conflict: Optimal Alternative Dispute Resolution’, RAND Journal of Economics, vol. 52/2 (2021).

Emilia Onyema and Monalisa Odibo, ‘How Alternative Dispute Resolution Made a Comeback in Nigeria’s Courts’, Africa Research Institute-Understanding Africa Today, 23 Jun 2017, 5-6, https://www.africaresearchinstitute.org/newsite/publications/counterpoints/alternative-dispute-resolution-made-comeback-nigerias-courts/#:~:text=When%20the%20Lagos%20Multi%2DDoor,and%20rooted%20in%20Nigeria's%20past .

Ibrahim Barkindo, ‘The Role of Traditional Rulers in ADR - An Islamic Law Perspective’, (Paper presented at the National ADR Summit for Traditional Rulers, Asaa Pyramid Hotel, Kaduna, 6-7 October 2009), https://www.scribd.com/doc/24011864/The-Role-of-Traditional-Rulers-in-ADR-An-Islamic-Law-Perspective , accessed on 19 December 2023.

Igwe Onyebuchi Igwe, Kevin Onwuka Udude and Ogah Chinyere Constance, ‘A Review of Continuous Relevance of the Traditional Methods of Dispute Resolution Mechanism in Southeast of Nigeria’, Beijing Law Review, vol. 11/1 (2020).

Martin Sokefeld, Spaces of Conflict in Everyday Life, Perspective Across Asia, 1st ed. (New York: Columbia University Press, 2015).

Muhammad Akram Khan, ‘Al-Hisba and the Islamic Economy’, in Public Duties in Islam: The Institution of the Hisba, Ahmad Ibn ‘Abd al-Halim Ibn Taymiyah, ed. Muhtar Holland and Khurshid Ahmad, trans. Muhtar Holland (Leicester: The Islamic Foundation, 1982).

Muhammad Akram Khan, An Intrduction to Islamic Economics (Islamabad: The International Institute of Islamic Thought, 1994).

Muhammad Mushin Khan, Translation of the Meanings of Sahih al-Bukhari, vol. 3, 5th ed., (New Delhi: Kitab Bhavan, 1984).

Muhammed S. O (Qadi, Shari’ah Court of Appeal, Ilorin Kwara State Nigeria) in interview with the author, 1 December 2009.

Mushtaq Ahmad, Business Ethics in Islam (Pakistan: The International Institute of Islamic Thought, 1995).

Norjihan Ab Aziz and Nasimah Hussin, ‘The Application of Mediation (Sulh) in Islamic Criminal Law’, Shariah Journal, vol. 24/1 (2016).

Oyeniyi Ajigboye, ‘The Concept of Multi-Door Courthouse in Nigeria: Rethinking Frank Sander’s Concept’, SSRN, 16 November 2014, https://ssrn.com/abstract=2525677 or http://dx.doi.org/10.2139/ssrn.2525677

Roger Blench, Selbut Longtau, Umar Hassan and Martin Walsh, ‘The Role of Traditional Rulers in Conflict Prevention and Mediation Nigeria’, (Prepared for the United Kingdom’s Department for International Development (DFID), Nigeria, 9 November 2006).

Rufa’i Sulaiman Abubakar and Atikullah Hj Abdullah, ‘The Roles of Hisbah Commission and its Challenges in the Zamfara State of Nigeria’, International Journal of Academic Research in Business and Social Sciences, vol. 11/9 (2021), https://www.researchgate.net/publication/355149435_The_Roles_of_Hisbah_Commission_and_its_Challenges_in_the_Zamfara_State_of_Nigeria , accessed on 19 December 2023

Sayyid Sabiq, Fiqh al-Sunnah, vol. 3 (Qahirah: Dar al-Fath li al-I‘lam al-‘Arabi, 2000).

Section 19 (d) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

Section 61 of the Area Courts Edict, 1967 Central-West State of Nigeria Gazette No. 7, vol. 1, 21st December 1967-Supplement.

Stephen B. Goldberg, Frank E. A Sander, Nancy H. Rogers and Rudolph Cole, Dispute Resolution: Negotiation Mediation and Other Process, 3rd ed. (New York: Wolters Kluwer, 1999).

Syed Khalid Rashid, Alternative Dispute Resolution in Malaysia (Kuala Lumpur: Kulliyyah of Laws, IIUM, 2000).

Syed Khalid Rashid, Alternative Dispute Resolution: The Emerging New Trend of Informal Justice (Gombak: International Islamic University Malaysia, 2006).

Sheikh Burhanuddin Abi Al Hasan Ali Marghinani, The Hedaya Commentary on the Islamic Laws, trans. Charles Hamilton (Pakistan: Darul-Ishaat, 2005).

Wahbah al-Zuhayli, al-Fiqh al-Islami wa Adillatuh, vol. 6, 3rd ed. (Dimashq: Dar al-Fikr, 1989).

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JAMS ADR Insights

How to prevent frequent contract errors in large construction projects.

May 15, 2024

Fantastic news! The deal has come together—for construction of the steel bridge or for placement of the exterior panels on the downtown high-rise or for the dirt work at the site of the new energy plant. All the hard work, planning, bidding and negotiation have reached a culmination! Well, not quite. There’s still a contract to wrap up. And too often, contract mistakes can undermine everything that went into landing the deal. Here are remedies to three errors that—as a judge with many years of experience in construction dispute resolution—I have seen with surprising frequency.

• What is the contract? Be clear about contract formation.

Too often, even among sophisticated parties, I see deals that lack a central, written contract. We all know there are legal doctrines that allow attorneys to come to the rescue—i.e., to argue about when and how a contract was formed. At times, bids, quotes, purchase orders, specifications and other documents can—separately or in combination—constitute the parties’ contract. But why leave it open to argument—and attorneys’ fees—once a problem arises? The best practice is to prepare a contract, even if it’s short and simple, that is signed and executed on a specific date. In the alternative, make a written record of when the parties have reached final terms and what documents form the parties’ contract.

• How do multiple documents relate to each other? Be clear about incorporating other documents and agreements.

I also see deals that reference other documents but lack clarity about the force and effect of those documents. In a recent public works case, there was a brief written contract that made a passing reference to payment in accordance with “the prime contract”—presumably the general contractor’s agreement with the public agency. And plan drawings referred to the standard specifications of the state Department of Transportation (DOT). When a dispute arose, one side argued that the contract incorporated both the prime contract and the DOT specifications. The other side argued that the contract did not incorporate either. Again, why leave the matter open to argument? If you intend to incorporate into your contract another document, state that clearly in the contract. Conversely, if you refer to another document but do not intend incorporation, be clear about that as well.

• Which claims are included? Be clear about which claims and disputes you are including (or excluding) in dispute resolution provisions.

Whether it’s a provision that requires arbitration, selects a particular state or county forum, or provides for attorneys’ fees, attorneys commonly draft provisions that pertain to claims or disputes “hereunder,” “under this agreement” or “arising out of the agreement.” Often, it appears that the drafter did not deliberately decide how broad the provision should be or analyze it to understand its scope. As a result, some contracts require arbitration, a specific forum or attorneys’ fees only in regard to the contract, but not in regard to noncontractual claims related to the very deal that the contract pertains to (e.g., negligence, fraud and common law indemnity claims). If you intend to exclude certain claims from your provision, so be it. But make a deliberate choice and don’t inadvertently exclude some related claims or disputes because you failed to analyze or draft carefully.

It can be frustrating for a company to work hard for business and finally land a great deal, but then have the work and the deal overshadowed by costly litigation. Some disputes will entail unavoidable litigation costs. But counsel can help their clients mitigate those costs on the front end by following the steps I’ve outlined above. Backing up a winning deal with the right level of support is always key.

Disclaimer: The content is intended for general informational purposes only and should not be construed as legal advice. If you require legal or professional advice, please contact an attorney.

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