A Brief History of Alternative Dispute Resolution (ADR)
The activity of mediation appeared in very ancient times. Historians located early cases in Phoenician commerce. The practice developed in Ancient Greece, then in Roman civilization. Roman law, starting from Justinian's Digest of 530 - 533 CE recognized mediation. The Romans called mediators by a variety of names, including internuncius, medium, intercessor, philantropus, interpolator, conciliator, interlocutor, interpres, and finally mediator.
Some cultures regarded the mediator as a sacred figure, worthy of particular respect; and the role partly overlapped with that of traditional wise men or tribal chief. This method of resolving conflicts was particularly prevalent in communities of Confucians and Buddhists’.
Anglo-Saxon Legal Era
The Anglo-Saxon period of English legal history is usually thought of as beginning in A.D. 601, because documentation of Anglo-Saxon legal practices dates from that year, and continued even after the Normans wrested England from Angol-Saxon rule in A.D. 1066. The central finding of legal historians of that era are that the Anglo-Saxons used an array of dispute resolution processes akin to modern-day adjudication, arbitration, mediation, and negotiation, and that these processes were available to litigants during the life of a lawsuit on a “dispute processing continuum”.
These processes and their inter-relationship on the dispute processing continuum aimed to foster respect for law and legal process, and to affect the peaceful and enduring resolution of disputes, and promoting the reconciliation of the parties.
These aims were the product of a historical context in which violent measures of self-help, so long the cultural norm among the Germanic pagans, became less acceptable as Christian teachings about the importance of law, social order, and neighborly love fostered the legal process as the preferred method of dispute resolution.
Legal historian studies reach a number of historical conclusions. One cluster of conclusions arises from the discovery that Anglo-Saxon lawsuits could be commenced in one of two functionally similar legal processes – adjudication and arbitration – both of which co-existed as beginning points on the dispute processing continuum, and both of which produced legal judgments.
A second cluster of conclusions arises from the finding that legal decision-makers of the time – judges and arbitrators – often encouraged parties to reach settlement agreements.
Perhaps the most interesting procedural feature of this practice was that it occurred on the dispute processing continuum after the decision-makers had reach a winner-take-all judgment on the merits of the claim. At this point on the continuum, the decision-makers often became mediators, or would assign a mediator for the purpose of helping the parties to negotiate settlement agreements.
The advent of written settlement agreements during this period of English legal history gave settlement outcomes the binding effect of legal judgments.
The social, economic, and legal structure of modern American society is vastly different from its Anglo-Saxon counterpart. The American legal system is far more complex, structurally and procedurally than it was in Anglo-Saxon England. Yet there are historical analogies to be drawn between the preference for settlement outcomes then and today, as-well-as the dispute resolution processes used to affect those outcomes.
The pre-eminence of courts in the United States has made that institution the forum to which most Americans bring an ever widening array of legal disputes to be adjudicated. Yet, only a small percentage of lawsuits are actually resolved through legal judgment. Owing to the phenomenon of “bargaining in the shadow of the law”, many lawsuits are settled during the course of litigation outside the courts through “alternative” dispute resolution processes, such as arbitration, mediation and negotiations.
This suggests that the preference for settlement outcomes in both historical contexts is the product of an economically rational form of cost/benefit and risk analysis. Hence, litigants at both ends of the historical spectrum – in Anglo-Saxon England and today – can be seen by us to be making calculated decisions to settle when they believe that by averting a legal outcome they will be better off.