A pathology of civil procedure

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CHAPTER 3 THE PRIMARY PROCESSES: DEFINITIONS, CONCEPTS AND TERMINOLOGY

The primary processes

ADR is founded upon three primary processes: negotiation, mediation and arbitration. Although this statement is academically neat and does correctly express a basic premise, the sceptic might rightly retort that not one of these processes is original to ADR. There is a great deal of truth in this response. The primary processes are certainly not novel to ADR. For centuries, negotiation, mediation and arbitration have been recognised as non-judicial methods of dispute resolution. This raises a number of foundational questions in relation to the place of the primary processes within the system of ADR: Is ADR an authentic system of dispute resolution if it uses traditional methods of dispute resolution as its primary processes? Does ADR genuinely contribute to the resolution of disputes if it relies on dispute resolution processes that have been and will be utilised irrespective of its existence as a system of dispute resolution? These are challenging questions that force an answer.
There is no quibble that the primary processes are orthodox methods of non-judicial dispute resolution. However, within the context of the ADR movement, these primary processes have been thoroughly modernised. Each primary process has been re-interpreted to apply in instances that fall beyond its traditional domain. For instance, arbitration was mainly used to resolve commercial disputes but is now also recognised as an effective dispute resolution process in the field of labour relations and, whereas mediation was traditionally applied as a means of resolving ecclesiastical and international disputes, presently its scope has been extended to facilitate, inter alia, divorce settlements as well as the resolution of family and community disputes. Although negotiation, mediation and arbitration will always be recognised as traditional methods of dispute resolution, their incorporation in the system of ADR has resulted in an extension of their conventional fields of application. In brief, the conventional form and functions of negotiation, mediation and arbitration have. been retained. However, as a result of their integration within the system of ADR, the scope of their application has been extended to areas of dispute that were never envisaged traditionally.
The other important point is that all three traditional dispute resolution processes have now been incorporated into a single system of dispute resolution. Prior to the inception of the ADR movement, each primary process functioned independently of the other. As in the case of many traditional usages, very little systematic or analytical consideration had been given to the primary processes. ADR has changed this. The combination of the three primary processes within one system of dispute resolution has engendered research into the nature of these processes, their form, function, objectives and classification as well as the type of dispute to which each relates. ADR research is backed by the widespread application of these processes in a variety of fields that hitherto had not been considered. This by no means implies that ADR has become a field of science; it is still in its initial stages of development. However, acting as a catalyst, the combination of the primary processes in a single system of dispute resolution has encouraged a body of research, albeit not always systematic, that holds promise for a science in the making.
However, research into and the popular practice of the primary processes in diverse fields of application does not of itself establish ADR as an independent system of dispute resolution. Such a development would have occurred irrespective of the existence of ADR. Something more is needed to satisfy the sceptic. In this respect, two important factors need to be examined: the extension of a particular primary process into a variety of derivative processes as well as the mixing of certain elements of the primary processes to form hybrid processes.
There can be no doubt that the merging of the primary processes into the ADR framework has led to a great deal of creative experimentation with dispute resolution processes. The purpose is to achieve the optimum resolution of a dispute in terms of cost effectiveness, economy of time and the quality of the settlement. With these objectives in mind, the conventional form and function of the primary processes have been retained but their method of application has been diversified. An example would best illustrate this. The term « arbitration » is associated with a voluntary and private process that is, like litigation, formal and adjudicative in form, being therefore time-consuming and often expensive. Normally, arbitration in this form is referred to as « conventional » arbitration. But, with the emergence of ADR, the term « arbitration » is not any longer as clear. Under the direct influence of the ADR movement, a wide variety of arbitration techniques have been developed: expedited arbitration, final-offer arbitration, documents-only arbitration and quality arbitration.⁵ Similarly, negotiation is a general term that could refer to competitive, co-operative or integrative negotiation in a variety of social contexts.⁶ By the same token, structured mediation, conciliation and facilitation are derived from a generic concept of mediation.⁷ Although the primary processes are not original to ADR, their derivative processes are. The system of ADR has not simply borrowed processes – it has also generated derivative processes.
Given all these considerations, there is one that is overriding and alone validates the authenticity of ADR as an independent system of dispute resolution, notwithstanding its reliance on the primary processes. The ingenuity of ADR lies in the manner in which elements of negotiation, mediation and arbitration have been combined to form hybrid or See, further, 3.2.3 and chapter 7 below.
See, further, 3.2.1 and chapter 5 below.
See, further, 3.3.2 and chapter 6 below.
mixed processes. ⁸ The merging of certain characteristics and functions of two or more of the primary processes has created a rich variety of highly effective and efficient dispute resolution processes that are original only to the system of ADR. For example: the mini-trial9 is an off-shoot of the process of negotiation in combination with the process of litigation; the rent-a-judge process¹⁰ assimilates the principles of arbitration and litigation; mediation/arbitration ¹¹ merges the primary processes of mediation and arbitration. The hybrid processes are distinct from the primary processes. As a direct result of the influence of ADR, they have acquired the stature of modern dispute resolution processes that cater for contemporary needs. Understandably, because they are modern, there is not much systematic research or even a comprehensive understanding of the hybrid dispute resolution processes. What is established though is that the hybrid processes are indisputably original to the system of ADR.
Although ADR is founded upon the processes of negotiation, mediation and arbitration, it is not totally dependent upon these processes. The invention of non-conventional dispute resolution processes has produced a portfolio of dispute resolution processes unknown to any other generation except our own. This in itself lends authenticity to the system of ADR and establishes it as an independent system of dispute resolution. The system of ADR thus stands on the foundations of the primary processes upon which a variety of authentic dispute resolution processes have been constructed.

Exploratory analysis

Negotiation

Compared  to  the     other  primary  processes,      negotiation    is  the    dominant  process.
Negotiation is inherent in the nature of humankind. Since time immemorial, humans have negotiated about every conceivable aspect of life and still do so today. Viewed in this context, negotiation is as varied as the persons involved and as complex as the related · situations it serves. Accordingly, definitions abound. However, a random sample of some definitive descriptions do explain the basic elements of negotiation Negotiation is a basic means of getting what you want from others. It is a back-and-forth communication designed to reach an agreement when you and the other side have some interests that are shared and others that are opposed.¹
Negotiation, that is where two or more people together attempt to reach agreement on some matter.¹³
Negotiation may be generally defined as a consensual bargaining process in which parties attempt to reach agreement on a dispute or potentially disputed matter.¹⁴
Negotiation is a process of interaction between parties directed at reaching some form of agreement that will hold and that is based upon common interests; with the purpose of resolving conflict, despite widely dividing differences.¹⁵
[N]egotiation can be defined as the process in which two or more participants attempt to reach a joint decision on matters of common concern in situations where they are in actual or potential disagreement or conflict.¹⁶
Negotiation is one kind of problem-solving process – one in which people attempt to reach a joint decision on matters of common concern in situations where they are in disagreement and conflict.¹⁷

1.0 EXPLORING THE THESIS
1.1 A pathology of civil procedure
1.2 The search for system
1.3 Methodology
1.4 Preview: the anatomy of Alternative Dispute Resolution
1.5 Conclusion: processual pluralism
2.0 INTERPRETATION 
2.1 The alternatives vvithin the alternative
2.2 The meaning of dispute
2.3 Resolution in context
3.0 THE PRIMARY PROCESSES: DEFINITIONS, CONCEPTS
3.1 AND TERMINOLOGY

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AN ANALYSIS OF THE THEORY AND PRINCIPLES OF ALTERNATIVE DISPUTE RESOLUTION