Jennifer W. Reynolds
University of Oregon School of Law
October 15, 2011
27 Ohio St. J. on Disp. Resol. 477 (2012)
What’s the difference between litigation and alternative dispute resolution (ADR)? Litigation is war. ADR is kumbaya by the campfire. Litigation favors the strong over the weak. ADR gives everyone a voice. Litigation is about competition and gameplay. ADR is about cooperation and problem solving. Litigation is coercive. ADR is consensual. Litigation brings out the worst in people. ADR brings out the best. In short, litigation is dystopian, and ADR is utopian.
This sanguine conception of ADR has been popular for decades but is hopelessly inadequate. Although a utopian-dystopian dynamic does indeed fuel much ADR scholarship, this dichotomy is not as simple as ADR-good, law-bad. Not only are there multiple utopian visions in ADR that are sometimes contradictory, the utopianism of ADR may actually make alternative processes more vulnerable to dystopian propensities than traditional legal processes. This Article explores these paradoxes by examining the ways in which alternative processes respond to legal deficiencies, imagine different approaches to dispute resolution, and manage the ideological and practical challenges of effectuating positive social change. Understanding more about how ADR navigates between utopian and dystopian visions of sociopolitical life illuminates certain cultural assumptions around the possibilities and limits of dispute resolution while suggesting new directions for ADR theory.