Alternative Dispute Resolution Case 1

ALTERNATIVE DISPUTE RESOLUTION CASE

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 Alternative Dispute Resolution Case 2

Introduction

Alternative Dispute Resolution (ADR) emerged in the United States in the late 1960s at

the height of the legal reform and civil rights movements. Ever since ADR has been formalized

by the U.S Constitution as a legal means for settling disputes between parties outside the

courtroom1. However, ADR is not a Western legal concept, neither is it a new creation of modern

civilization, it has been practiced by traditional societies all over the world as a conflict

resolution framework. This paper shall examine the role of traditional dispute resolution

processes in the context of the Native American tribes of the U.S. and how they compare to the

principles of ADR.

Defining Alternative Dispute Resolution (ADR)

ADR is a collective term that refers to any method of resolving disputes without

litigation. It constitutes the various processes and techniques of conflict resolution that exist

outside the confines of governmental authority2. The most common ADR methods include

arbitration, mediation, negotiation, conciliation, and transaction. Although ADR methods have

some slight differences in their principles and application, they all have one common objective;

to enable warring parties to find admissible solutions to their disputes outside the traditional

legal/judicial framework3.

The different ADR methods are governed by different rules. For example, mediation and

conciliation include the involvement of a third party to help conflicting parties find a common
1
Michael McManus and Brianna Silverstein, ‘Brief History of Alternative Dispute Resolution in the United States’
(2011) 1 Cadmus Journal
<http://www.cadmusjournal.org/files/pdfreprints/vol1issue3/Reprint_McManus_Silverstein_Brief_History_ADR.p
df> accessed 4 April 2023.
2
‘Alternative Dispute Resolution’ (LII / Legal Information Institute)
<https://www.law.cornell.edu/wex/alternative_dispute_resolution> accessed 4 April 2023.
3
‘Alternative Dispute Resolution’ (LII / Legal Information Institute)
<https://www.law.cornell.edu/wex/alternative_dispute_resolution> accessed 4 April 2023.
 Alternative Dispute Resolution Case 3

ground whereas in negotiation a third-party intervention is not permitted. In the same vein, the

powers of the arbitrator (s) are superior in an arbitration process than in conciliation or mediation

since they can render a legally binding decision to which the parties are subject. Generally, ADR

methods are often applied at different levels of conflict and tend to have a complementary

nature4.

ADR in the Native American Context

The history and tradition of conflict resolution among the various native tribes of

America have largely been non-adversarial with the main objective of repairing community

relationships and promoting peaceful coexistence5. Over the years, scholars have tended to

categorize the traditional conflict resolution processes as types of restorative justice and not

retributive justice. Essentially, restorative justice processes are less punitive and seek to repair

the damage caused by the conflict, rehabilitate both victims and offenders and reestablish

positive human relationships in a community6.

The concept of justice in the Native American Context greatly differs from the

mainstream American criminal justice system. While the goal of the mainstream American

justice system is to “punish and isolate” in the process of rehabilitating the offender, the Native

American system seeks to promote healing and reconciliation among the parties involved in the

4
Taniya Yadav, ‘Difference between Mediation and Arbitration’ (iPleaders18 January 2023)
<https://blog.ipleaders.in/difference-between-mediation-and-arbitration/> accessed 4 April 2023.
5
Matt Arbaugh, 'Making P Making Peace the Old F Eace the Old Fashioned W Fashioned Way: Infusing T Y: Infusing
Traditional T Aditional Tribal Practices into Modern ADR' (2002) 2 Pepperdine Dispute Resolution Law Journal 114
<https://digitalcommons.pepperdine.edu/drlj/vol2/iss2/6> accessed 4 April 2023.
6
Matt Arbaugh, ‘Making P Making Peace the Old F Eace the Old Fashioned W Ashioned Way: Infusing T Y: Infusing
Traditional T Aditional Tribal Practices into Modern ADR’ (2002) 2 Pepperdine Dispute Resolution Law Journal 114
<https://digitalcommons.pepperdine.edu/drlj/vol2/iss2/6> accessed 4 April 2023.
 Alternative Dispute Resolution Case 4

conflict. The former focuses on the harm of offender's actions on the state while the latter

addresses the impact of the offender's actions on the victim and a defined community7.

Forms of ADR in the Native American Context

Generally, Native American communities practice three forms of restorative justice

processes. In the first form, a third party mediates between a victim and offender directly. A

mediator, specially trained in traditional legal principles, meets with both the victim and offender

separately. During the separate sessions, the mediator listens to and discusses every detail of the

conflict with each party8. After the individual sessions, the mediator convenes a joint meeting

with both parties where an agreement between the two is sought.

The second form of restorative justice is group/family mediation. In this case, members

of the warring parties such as family members meet together under the leadership of a third party

who is often a mediator or conciliator. It is very much similar to the ‘victim-offender’ process

only that the family members are present to provide moral support or advice to either party9.

The third category is the most widely practiced in Native American communities and it is

called the Peacemaking Circle10. Similar to the family/group model, participants in the process

include the two conflicting parties and their families. However, in this model members of the

community are invited to participate in the peacemaking process. The inclusion of community
7
Jessica Metoui, ‘Returning to the Circle: The Reemergence of Traditional Dispute Resolution in Native American
Communities’ (Missouri University 2007) <https://scholarship.law.missouri.edu/cgi/viewcontent.cgi?
article=1546&context=jdr> accessed 4 April 2023.
8
Jessica Metoui, ‘Returning to the Circle: The Reemergence of Traditional Dispute Resolution in Native American
Communities’ (Missouri University 2007) <https://scholarship.law.missouri.edu/cgi/viewcontent.cgi?
article=1546&context=jdr> accessed 4 April 2023.
9
Jessica Metoui, ‘Returning to the Circle: The Reemergence of Traditional Dispute Resolution in Native American
Communities’ (Missouri University 2007) <https://scholarship.law.missouri.edu/cgi/viewcontent.cgi?
article=1546&context=jdr> accessed 4 April 2023.
10
Jessica Metoui, ‘Returning to the Circle: The Reemergence of Traditional Dispute Resolution in Native American
Communities’ (Missouri University 2007) <https://scholarship.law.missouri.edu/cgi/viewcontent.cgi?
article=1546&context=jdr> accessed 4 April 2023.
 Alternative Dispute Resolution Case 5

members is inspired by Native American philosophies which view criminal or civil offense as

not only the offender breaching their relationship with the victim but with their community11.

Thus, any resolution should not only focus on punishing the individual but seeking redress for

the victim and the community as a whole. Typically, peacemaking circles incorporate different

forms of ADR at different stages of the process. Mediation may be used when attempting to find

an amicable agreement between the warring parties or groups. Arbitration may be used when

attempting to find an agreeable recourse for the affected party while negotiation may be

employed when exploring peaceful resolutions for the present and future conflicts in the

community.

A Case Study of ADR in a Native American Community

In the 1960s, the Puyallup tribe of Indians in Tacoma, Washington became embroiled in a

major land dispute with the state. The land in question was an 18,000-acre reservation in the

Tacoma area which was awarded to the tribe following a treaty dating back to the 1850s12. The

vast area of land included large parts of the city. In 1887, Congress passed the Dawes Severality

Act which partitioned reservations among individual tribal members setting the stage for further

additional legislation13. A wave of encroachment by greedy developers and fraudulent land sales

by the city and state governments led to a series of litigations in federal courts by the tribe’s

activists14.

11
Jeff May, ‘Restorative Justice: Theory, Processes, and Application in Rural Alaska’ (2014) 31 Alaska Justice Forum
<https://core.ac.uk/download/pdf/162578536.pdf> accessed 4 April 2023.
12
David Wilma, ‘Puyallup Tribe of Indians Accepts a $162 Million Settlement for Lost Land on March 25, 1990.’
(www.historylink.org21 October 2006) <https://www.historylink.org/File/7969#:~:text=On%20March%2025%2C
%201990%2C%20the> accessed 4 April 2023.
13
‘Dawes Act (1887)’ (National Archives) <https://www.archives.gov/milestone-documents/dawes-
act#:~:text=Approved%20on%20February%208%2C%201887> accessed 4 April 2023.
14
David Wilma, ‘Puyallup Tribe of Indians Accepts a $162 Million Settlement for Lost Land on March 25, 1990.’
(www.historylink.org21 October 2006) <https://www.historylink.org/File/7969#:~:text=On%20March%2025%2C
%201990%2C%20the> accessed 4 April 2023.
 Alternative Dispute Resolution Case 6

In its case, the tribe petitioned the courts to determine their rights to the land and order a

return of the territory. These litigations bore some fruits in 1984 when the U.S Supreme Court

withheld a lower court ruling in favor of the tribe ordering that the state of Washington pay a $77

million compensation15. The land in question was 12 acres in the former Puyallup River bed.

This decision opened Pandora's Box of litigations by the tribe laying claim to more land.

However, the land the tribe was claiming had already undergone immense development

which had the potential to trigger an anti-Indian backlash among the public. Therefore, in 1986

representatives from the Puyallup tribe, and the city and state government kicked on a series of

negotiations to find a mutually satisfactory solution. On March 25, 1990, the Puyallup Tribe of

Indians in Tacoma voted overwhelmingly to accept a settlement of $162 million to which it

ceded all its claims to the 18,000-acre former reservation land16. This breakthrough highlighted

the significant role of negotiation in the conflict resolution process. Negotiation is typically the

first attempt to dispute resolution. It allows the parties total control of the process and outcome

and also much more flexibility than other forms of ADR.

In addition, arbitration must have been present in the dispute resolution process to affirm

the legal validity of the agreements. Arbitrators are more like judges or advocates who bear

witness to an agreement and validate it as a legally binding document17. Although arbitrators can

be selected from other fields unrelated to the law as long as the warring parties reach a consensus

on the selections. For instance, Senator Daniel Inouye of Hawaii played a significant role in
15
Timothy Egan, ‘Indian Tribe Agrees to Drop Claim to Tacoma Land for $162 Million’ The New York Times (29
August 1988) <https://www.nytimes.com/1988/08/29/us/indian-tribe-agrees-to-drop-claim-to-tacoma-land-for-
162-million.html> accessed 4 April 2023.
16
David Wilma, ‘Puyallup Tribe of Indians Accepts a $162 Million Settlement for Lost Land on March 25, 1990.’
(www.historylink.org21 October 2006) <https://www.historylink.org/File/7969#:~:text=On%20March%2025%2C
%201990%2C%20the> accessed 4 April 2023.
17
Katie Shonk, ‘What Is Alternative Dispute Resolution?’ (PON - Program on Negotiation at Harvard Law School1
December 2020) <https://www.pon.harvard.edu/daily/dispute-resolution/what-is-alternative-dispute-resolution/>
accessed 4 April 2023.
 Alternative Dispute Resolution Case 7

spearheading the negotiation process and putting together the deal. As chair of the Senate Select

Committee on Indian Affairs, he called for Federal Government to settle $77.5 million of the

claim18. Therefore, this dispute resolution process incorporated two ADR processes, negotiation

was the prominent one while arbitration served to provide legal credibility and validity of the

agreements which compelled both the federal and state governments to honor it.

Conclusion

Alternative dispute resolution is growing significantly as a more flexible, cheaper, and

more convenient dispute resolution process than the traditional judicial system. It facilitates

amicable solutions to conflicts in a manner that not only satisfy the demands of justice but

repairs or preserves the relationships of the parties. As we have seen in the Native American

context, ADR is a form of restorative justice and not retributive justice whose main goal is the

promotion of peaceful co-existence between members of the community. The resolution of the

century-old land dispute between the Puyallup Indian tribe and the State of Washington is a

testament to the effectiveness of ADR methods such as negotiation and arbitration in conflict

resolution.

18
‘Cantwell Delivers Floor Speech in Remembrance of Sen. Daniel Inouye | U.S. Senator Maria Cantwell of
Washington’ (www.cantwell.senate.gov20 December 2012) <https://www.cantwell.senate.gov/news/press-
releases/cantwell-delivers-floor-speech-in-remembrance-of-sen-daniel-inouye> accessed 4 April 2023.
 Alternative Dispute Resolution Case 8

Bibliography

‘Alternative Dispute Resolution’ (LII / Legal Information Institute)

<https://www.law.cornell.edu/wex/alternative_dispute_resolution> accessed 4 April 2023

Arbaugh M, ‘Making P Making Peace the Old F Eace the Old Fashioned W Ashioned Way:
Infusing T Y: Infusing Traditional T Aditional Tribal Practices into Modern ADR’ (2002)
2 Pepperdine Dispute Resolution Law Journal 114
<https://digitalcommons.pepperdine.edu/drlj/vol2/iss2/6> accessed 4 April 2023

‘Cantwell Delivers Floor Speech in Remembrance of Sen. Daniel Inouye | U.S. Senator Maria
Cantwell of Washington’ (www.cantwell.senate.gov20 December 2012)
 Alternative Dispute Resolution Case 9

<https://www.cantwell.senate.gov/news/press-releases/cantwell-delivers-floor-speech-in-
remembrance-of-sen-daniel-inouye> accessed 4 April 2023

‘Dawes Act (1887)’ (National Archives)

<https://www.archives.gov/milestone-documents/dawes-act#:~:text=Approved%20on
%20February%208%2C%201887> accessed 4 April 2023

Egan T, ‘Indian Tribe Agrees to Drop Claim to Tacoma Land for $162 Million’ The New York
Times (29 August 1988) <https://www.nytimes.com/1988/08/29/us/indian-tribe-agrees-
to-drop-claim-to-tacoma-land-for-162-million.html> accessed 4 April 2023

May J, ‘Restorative Justice: Theory, Processes, and Application in Rural Alaska’ (2014) 31
Alaska Justice Forum <https://core.ac.uk/download/pdf/162578536.pdf> accessed 4 April
2023

McManus M and Silverstein B, ‘Brief History of Alternative Dispute Resolution in the United
States’ (2011) 1 Cadmus Journal
<http://www.cadmusjournal.org/files/pdfreprints/vol1issue3/Reprint_McManus_Silverste
in_Brief_History_ADR.pdf> accessed 4 April 2023

Metoui J, ‘Returning to the Circle: The Reemergence of Traditional Dispute Resolution in Native
American Communities’ (Missouri University 2007)
<https://scholarship.law.missouri.edu/cgi/viewcontent.cgi?article=1546&context=jdr>
accessed 4 April 2023

Shonk K, ‘What Is Alternative Dispute Resolution?’ (PON - Program on Negotiation at

Harvard Law School1 December 2020) <https://www.pon.harvard.edu/daily/dispute-
resolution/what-is-alternative-dispute-resolution/> accessed 4 April 2023

Wilma D, ‘Puyallup Tribe of Indians Accepts a $162 Million Settlement for Lost Land on March
25, 1990.’ (www.historylink.org21 October 2006)
<https://www.historylink.org/File/7969#:~:text=On%20March%2025%2C%201990%2C
%20the> accessed 4 April 2023
 Alternative Dispute Resolution Case
10

Yadav T, ‘Difference between Mediation and Arbitration’ (iPleaders18 January 2023)

<https://blog.ipleaders.in/difference-between-mediation-and-arbitration/> accessed 4
April 2023