INDIGENOUS DISPUTE RESOLUTION
165The basic yet preeminent question surrounding ADR is this:what is it an alternative to?
The answer, particularly in the West-ern hemisphere, is that it is the alternative to the often tedious,strictly formal legal proceedings in court that is presided over by astate-appointed judge, with counsel representing the parties, and,in some cases or jurisdictions, the presence of juries. The problemwith this alternative approach is that there are numerous culturesand communities in other parts of world, even within NorthAmerica and the Western hemisphere, where litigation is not thenorm and is actually the alternative. The norms for these peopleare their own community dispute resolution procedures. Hence,the word “alternative” in ADR seems to be a misnomer as appliedto some cultures, be they situated in the developed or still develop-ing world.As a result of this, some have advocated that the letter “A” inADR should instead stand for “Appropriate,”
since the mostsuited or apt dispute resolution mechanism will differ from nationto nation, culture to culture, and community to community. De-spite the overwhelming and sustained popularity of ADR with the“Alternative” connotation in the world today, and despite its rela-tive success in resolving various types of disputes, there are severalcritiques of it. Whether the rights of the parties are not fully pro-tected or the fact that its facilitators may not understand the con-text and culture of both the dispute itself and the parties, ADR isnot and has never been the perfect solution to conflicts worldwide.ADR techniques have also been largely based on “co-existential justice,” even if, for example, “[t]his form of justice has . . . alwaysbeen part of African and Asian traditions where conciliatory solu-tions were seen to be to the advantage of all and often as a
Entering public consciousness in the 1970s, ADR has similarlybeen criticized as attempting to be something new and novel when,in fact, ADR-like forms of dispute resolution have been practicedby peoples and communities for centuries. The older forms of dis-pute resolution, particularly those practiced by the Indigenous or
Steven H. Goldberg,
“Wait a minute. This is where I came in.” A trial lawyer’s search for alternative dispute resolution
Consortium for Appropriate Dispute Resolution (CADRE),
note 1, at 2.
South African Law Commission – Issue Paper 8 (Project 94): Alternative DisputeResolution – Chapter 2: The Problem