(Re) Configuring ‘Alternative Dispute Resolution’ as ‘Appropriate Dispute Resolution’: Some Wayside Reflections

Abstract

The discourse on alternative dispute resolution systems has been characterised by two misconceptions that this paper will seek to unpack; Mischaracterization of ADR as alternative, and the failure by its supporters and critics to give it a jurisprudential foundation. In the absence of a jurisprudential foundation and proper characterization, ADR has been mistaken to be an ad hoc and secondary means of resolving conflict whenever parties find the courts to be inappropriate, expensive, cumbersome or unable to arrive at a proper outcome in a legal dispute. However as will be demonstrated in later sections of this paper, what is christened as ADR is actually the normal and mainstream response to disputes .In fact in some instances, courts resort to ADR when they realize that the dispute at hand has underlying socio-cultural and psychological factors that are outside the domain of law. For conceptual clarity, this article excludes all court sanctioned forms of ADR such as court annexed mediation and arbitration. To this end it is anchored upon informal forms of ADR such as mediation, conciliation negotiation and traditional justice systems.