In This Section



Alternative Dispute Resolution (ADR)  its origins rooted in English legal development. As early as the Norman Conquest, legal charters and documents indicate English citizenry instituted actions concerning private wrongs, officiated by highly respected male members of a community, in informal, quasi-adjudicatory settings. In some instances, the king utilized these local forums as an extension of his own legal authority; rather than adjudicate a suit via the more formal king’s court, the king would simply adopt the decision of a local, but highly respected, layperson without ever “reaching the merits” of the suit, creating one of the first forms of arbitration.  In some sense, then, common law ADR has been around for centuries.

In the United States, commercial arbitration existed in the early Dutch and British colonial periods in New York City. Pilgrim colonists, convinced that lawyers threatened Christian harmony, scrupulously avoided lawyers and courts, preferring to use their own mediation process to deal with community conflicts. When disagreements occurred, a body of male members of the community would hear claims, determine fault, assess damages, and ensure that the parties reconciled with one another. For much of the colonial period, these informal arbitrations were the norm.

Shortly after independence and the creation of a new government, ADR found its place in a number of applications, albeit sporadically. For instance, in the Patent Act of 1790, Congress provided for an arbitration system of competing patent claims. In such a dispute, the Act authorized the creation of an adjudicative board, consisting of one member appointed by each patent applicant and another by the secretary of state. Decisions by the board were binding and, should an applicant opt out of this arbitration, the other applicant’s patent would be summarily approved.

While these early attempts at ADR were essential to its development in the United States, ADR did not receive formal institutionalization until the late-19th Century. For instance, in 1898, Congress followed initiatives begun a few years earlier in Massachusetts and New York and authorized mediation for collective bargaining disputes. Special mediation agencies, like the Board of Mediation and Conciliation for railway labor and the Federal Mediation and Conciliation Service (FMCS), which are still operative today, were formed to carry out negotiations regarding employment. At this stage of ADR’s development, it was perceived of less as an alternative to litigation and more as a tool to avoid unrest, strikes, and the resultant economic disruption.

Today, arbitration exists at all levels of the U.S. legal profession. Law firms regularly employ retired judges or AAA certified attorneys with ADR expertise to offer mediation, negotiation, and arbitration services to individuals and businesses. In 1979, retired Judge Warren Knight of California started the Judicial Arbitration and Mediation Service, an organization dedicated to providing law firms, businesses, and individuals with access to judges willing to serve in ADR capacities. And in 1995, database providers, like Martindale-Hubbell, began publishing routinely-updated directories of ADR practitioners, their firms, and areas of practice, affording more individuals access to ADR related services.

Thus, ADR as a legal system has become firmly entrenched in the United States.

Source: http://www.cadmusjournal.org/node/98