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Taking Codes of Ethics Seriously: Alternative Dispute Resolution and Reconstitutive Liberalism

Published online by Cambridge University Press:  09 June 2015

Alex Wellington
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Alternative dispute resolution has the potential to be many things to many people, although it cannot, of course, be everything to everybody. A careful reflection on the appropriate role and scope of alternative dispute resolution will evidence that it has much to offer the legal profession and the legal system. For one thing, it can rejuvenate the practice of law for its practitioners, being both fun and fascinating. It can also help to improve the public perceptions of lawyers, which may be sinking to all time lows. One way of approaching the topic is to suggest that lawyers need alternative dispute resolution—they need it both to enhance their public image and in order to drum up new business opportunities. Another way of approaching the topic is to focus on the contribution of treatments of alternative dispute resolution to the “growth of the modern social scientific study of law.” Studies along these lines may emphasize the development of the Alternative Dispute Resolution movement in terms of attempts to “recast the market for dispute resolution services by different interests attempting to advance their own professional projects.”.

Yet a different way of examining alternative dispute resolution is to explore the self perceptions of its practitioners and theorists—what they think it has to offer to its consumers and society at large. Alternative dispute resolution certainly can provide a fertile source of ‘satisfaction’ to the parties to disputes. The “mediation alternative”, for instance, is said to provide a more complex form of ‘satisfaction’, one in which the needs and interests of the parties determine the final outcome. It is not only that there are some disputants—who currently are not aware of, or encouraged to pursue, opportunities to resolve their disputes by negotiation or mediation—who would benefit from access to ADR. It is also that even those who might fail to reach agreement if they tried negotiation or mediation would still benefit from the attempt and may be less likely to be disaffected or disappointed from the adjudicative outcome to their dispute having tried the “other way” beforehand. Perhaps even those who might decline to avail themselves of the option to try ADR even if offered would benefit just from having the choice. All disputants, therefore, benefit to some degree from the processes of ADR being readily available and carried out reliably and responsibly.

Type
Research Article
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Canadian Journal of Law & Jurisprudence , Volume 12 , Issue 2 , July 1999 , pp. 297 - 332
Copyright
Copyright © Cambridge University Press 1999

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References

1. The specific impetus for this paper came from my reading Roger Fisher & William Ury, Getting to Yes: Negotiating Agreement Without Giving In 2nd ed. by B. Patton (Boston, MA: Houghton Mifflin, 1991); Martha Nussbaum, The Feminist Critique of Liberalism (The Lindley Lecture) (Lawrence: University of Kansas, 1997); and James Rachels, The Elements of Moral Philosophy 3d ed. (Boston: McGraw-Hill, 1999) back to back. Although 1 had already been thinking along these lines, I was really struck by the resonances and echoes I found by juxtaposing the ideas in those works. Martha Nussbaum’s piece, The Feminist Critique of Liberalism was originally published as a monograph; it has since been reprinted in M. Nussbaum, Sex and Social Justice (New York: Oxford University Press, 1999) 55. All page references in this paper will be to the latter, subsequent publication.

2. Some advocates of ADR have suggested that it should be called “appropriate dispute resolution”, which has the benefit of valorizing the “alternatives” (making them all seem equally valid), but the disbenefit of no longer distinguishing the “alternatives” from the adjudication process.

3. It would be difficult to miss the enthusiasm and enjoyment that many mediators and negotiators bring to their work. Not many lawyers of my acquaintance find their work fun and fascinating on a regular basis. Paul Emond discusses the types of challenges and rewards that await the conventionally trained lawyer who branches out into alternative dispute resolution. D. P. Emond, “The Greening of Law” (1991) 36 McGill L. J. 742.

4. The need for lawyers to improve the public perception of the profession is discussed by Kirk Makin, “Lawyers Look For New Image” The Globe and Mail (27 December 1997) Al.

5. The potential of ADR to create business opportunities is outlined in S. Sue Hanna, “What’s New in Alternative Dispute Resolution?” Canadian Lawyer (May 1997) 35.

6. Susan Silbey & Austin Sarat, “Dispute Processing in Law and Legal Scholarship: From Institutional Critique to the Reconstruction of the Juridical Subject” (1989) 66 Denver U. L. Rev. 437. Other treatments of the topic include: Philip Gulliver, Disputes and Negotiations: A Cross-Cultural Perspective (New York: Academic Press, 1979); Richard Abel, “A Comparative Theory of Dispute Institutions in Society” (1973) 8 L. & Soc. Rev. 217. See also the following articles: Sally Engle Merry & Susan S. Silbey, “What Do Plaintiffs Want? Reexamining the Concept of Dispute” (1984) 9 Justice System J. 151; Ronald Pipkin & Janet Rifkin, “The Social Organization in Alternative Dispute Resolution: Implications for Professionalization of Mediation” (1984) 9 Justice System J. 204; Peter B. Edelman, “Institutionalizing Dispute Resolution Alternatives” (1984) 9 Justice System J. 134. For specific focus on the Canadian situation see The Honourable Mr. Justice George Adams & Naomi Bussin, “Alternative Dispute Resolution and Canadian Courts: A Time for Change” (Cornell Lectures, July 11,1994) 1-24; and Hanna, supra note 5.

7. Susan Silbey and Austin Sarat make this point, ibid, at 440. Social workers, family therapists and accountants are just a few of the other kinds of professionals entering the market to offer dispute resolution services.

8. Hereinafter “ADR”.

9. Julie Macfarlane, “Preface” in J. Macfarlane, ed., Rethinking Disputes: The Mediation Alternative (Toronto, ON: Emond Montgomery, 1997) at ix at xi.

10. Catherine Morris, “The Trusted Mediator: Ethics and Interaction in Mediation” in J. Macfarlane, ed., ibid, at 311.

11. This list is based on the one provided by Sarah Childs Grebe, Karen Irvin & Michael Lang, “A Model for Ethical Decision Making in Mediation” (1989) 7 Mediation Q. 133 at 134. Leda Cooks and Claudia Hale identify four themes: disputant self-determination, informed consent, mediator impartiality and mediator neutrality. L. Cooks & C. Hale, “The Construction of Ethics in Mediation” (1994) 12 Mediation Q. 55 at 61.

12. Martha Bailey, for instance, makes this claim in “Unpacking the ‘Rational Alternative’: A Critical Review of Family Mediation Movement Claims” (1989) 8 Can. J. of Family L. 61. The article is reprinted in J. Banfield, ed., 5th ed. Readings in Law and Society (Toronto, ON: Captus Press, 1993) 143. All page references are to the latter cite.

13. Gordon Woodman, “The Alternative Law of Alternative Dispute Resolution” in J. Banfield, Readings in Law and Society (Toronto, ON: Captus Press, 1993) 136 at 137.

14. Ibid.

15. For more on arbitration, see Roger F.X. Marentette, “A Review of the Alternative Dispute Resolution System in Ontario and Canada” (1992) Municipal World 8.

16. Steven Shrybman, Environmental Mediation: From Theory to Practice (Toronto, ON: Canadian Environmental Law Association, 1984). Excerpts reprinted in A. Greenbaum, E. Baar & A. Wellington, eds., Social Conflict and Environmental Law: Ethics, Economics and Equity (Toronto, ON: Captus Press, 1995) 197 at 199.

17. Ibid.

18. Robert Baruch Bush, “Using Process Observation to Teach Alternative Dispute Resolution: Alternatives to Simulation” (1987) 37 J. Legal Ed. 46 at 46.

19. In the legal literature, there is often discussion of the following processes which are adjunct to litigation: minitrial, summary jury trial, and early neutral evaluation. See Frank E. A. Sander, “The Varieties of Dispute Processing” (1976) 70 Federal Rules Decisions 111; and Frank E.A. Sander & Stephen B. Goldberg, “Fitting the Forum to the Fuss: A User-Friendly Guide to Selecting an ADR Procedure” (January 1994) Negotiation Journal 49-68. See also The Honourable Mr. Justice G. Adams & N. Bussin, supra note 6.

20. Gerald Cormick, “The Myth, the Reality and the Future of Environmental Mediation” (1982) 24 Environment 14 at 16.

21. Ibid at 16.

22. Ibid. The wording is part of a definition provided by The Institute for Environmental Mediation, which is an American organization.

23. Gordon Woodman, “The Alternative Law of Alternative Dispute Resolution” in J. Banfield, supra note 13 at 138.

24. David A. Lax & James K. Sebenius, “Three Ethical Issues in Negotiation” (1986) Negotiation J. 363 at 365. See also their book D.A. Lax & J.K. Sebenius, The Manager as Negotiator: Bargaining for Cooperation and Competitive Gain (New York: Free Press, 1986).

25. D.A. Lax & J.K. Sebenius, “Three Ethical Issues in Negotiation”, Ibid, at 365.

26. G. Woodman, “The Alternative Law of Alternative Dispute Resolution” in J. Banfield, supra note 13 at 136.

27. Frank Sander uses the term “dispute processing” instead. See his article, “Varieties of Dispute Processing”, supra note 18.

28. G. Woodman, “The Alternative Law of Alternative Dispute Resolution” in J. Banfield, supra note 12 at 136.

29. F. Sander, “The Obsession With Settlement Rates” (October 1995) Negotiation J. 329 at 329.

30. For a representative sample of the remarkable diversity and vitality of current liberal political theory, see the following: Bruce Ackerman, Social Justice in the Liberal State (1980); Andrew Altman, Critical Legal Studies: A Critique (1990); Ronald Dworkin, Taking Rights Seriously (1977); Ronald Dworkin, A Matter of Principle (1985); William Galston, Liberal Purposes: Goods, Virtues, and Diversity in the Liberal State (1991); Robert Goodm,Utilitarianism as a Public Philosophy (1995); John Gray, Liberalisms: Essays in Political Philosophy (1989); Catherine MacKinnon, Feminism Unmodified: Discourses on Life and Law (1987); Catherine MacKinnon, Toward a Feminist Theory of the State (1989); Martha Nussbaum, The Feminist Critique of Liberalism (1997); John Rawls, Political Liberalism (1993); Joseph Raz, The Morality of Freedom (1986); Jeremy Waldron, Liberal Rights: Collected Papers 1981—1991 (1993). For treatments of antiliberalism, see Ronald Bánet,What’s the Matter With Liberalism (1992); Stephen Holmes, The Anatomy of Antiliberalism (1993); John Kekes, Against Liberalism (1997); Michael Sandel, Liberalism and the Limits of Justice (1982).

31. M. Nussbaum, supra note 1 at 57.

32. John Gray, Liberalism, 2nd ed. (Minneapolis: University of Minnesota Press, 1995). Jeremy Waldron talks about liberalism, socialism and conservatism in terms of family membership. Waldron contends that “we are unlikely to find any set of doctrines or principles that are held in common”, or any “core or essence” of hberalism. See J. Waldron, “Theoretical Foundations of Liberalism” (1987) 37 Phil. Q. 127 at 127.

33. My philosopher critics, of which no doubt there will be many, would insist that I acknowledge that for many academics the crucial contemporary debates are between perfectionist accounts of liberalism and other non-perfectionist ones. John Rawls uses the term in A Theory of Justice (Cambridge, MA: Belknap Press, 1971) and others have since carried on with developing the idea. See Joseph Raz’s The Morality of Freedom (Oxford: Clarendon Press, 1986); and the papers in the “Symposium: The Works of Joseph Raz” (1989) 62 S. Cal. L. Rev. (especially Leslie Green’s “Law, Legitimacy, and Consent” 795; and Jeremy Waldron’s “Autonomy and Perfectionism in Raz’s Morality of Freedom” 1097). See also W.J. Waluchow’s review of Raz’s work in “Critical Notice” (1989) 19 Can. J. Phil. 477.1 wish to emphasize that there have as yet been few perfectionist accounts that have been very “applied”, and that generally perfectionism has not quite caught on in policy circles or in society at large (at least not to my knowledge).

34. The most well known texts of classical liberalism are John Locke’s Two Treatises of Government and John Stuart Mill’s On Liberty. One could certainly also include Jeremy Bentham’s An Introduction to the Principles of Morals and Legislation. In addition, there is a massive secondary literature just on those works alone. As for neoliberalism, see G.R.D. Underhill, “Introduction: Conceptualizing the Changing Global Order” in R. Stubbs & G.R.D. Underhill, eds., Political Economy and the Changing Global Order (Toronto, ON: McClelland & Stewart, 1994) 17; also in that book see Stephen Gill, “Knowledge, Politics, and Neo-Liberal Political Economy”, ibid 75; and Mitchell Bernard, “Post-Fordism, Transnational Production, and the Changing Political Economy”, ibid 216.

35. Classical liberalism was at least optimistic that limiting government would lead to greater freedom for every citizen; neoliberalism at its most cynical seems unconcerned whether or not this would be the case.

36. John Gray, Liberalism First Edition (Minneapolis: University of Minnesota Press, 1986) at 39.

37. See R.M. Dworkin, Taking Rights Seriously (London: Duckworth, 1977). There are, of course, many critical treatments of these claims to be found throughout the various works cited in note 30.

38. M. Nussbaum, supra note 1 at 71. Nussbaum is specifically referring to feminism, but goes on to say that the “liberal feminist is in a better position than are many others” to pursue that objective.

39. I realize that the import of this claim will very much depend upon what one means by “social justice”. Suffice it to say that this is a topic of real importance, but it is one that would take me far away from my present purposes. See the papers collected in M. Fisk, ed., Justice (Key Concepts in Critical Theory) (Atlantic Highlands, NJ: Humanities Press, 1993) for an indication of the range of contemporary accounts of justice.

40. Martha Nussbaum uses the term “reformulation”, and Jeremy Waldron talks about “reconstructing” the foundations of liberalism. Others have used similar terms.

41. J. Gray, supra note 35 at 39. See Isaiah Berlin, Four Essays on Liberty (London: Oxford University Press, 1969).

42. I borrow this list from Martha Nussbaum, and add the concern for neutrality. See supra note 1 at 56.

43. J. Waldron, supra note 31 at 131.

44. J. Gray, supra note 35 at x.

45. M. Nussbaum, supra note 1 at 77.

46. J. Waldron, supra note 31 at 131.

47. M. Nussbaum, supra note 1 at 57.

48. There is a vast literature on the harm principle and its acclaimed centrality for liberalism. Joseph Raz, supra note 32, provides an extensive discussion of this topic, including a “reinterpretation” of the principle and its place in liberal theory. See also Jeremy Waldron supra note 32. There is also a vast literature on the meaning of liberty for liberals, including debates over the distinction between negative liberty and positive liberty and the significance of that distinction. See John Stuart Mill, On Liberty and the papers by Isaiah Berlin, Ronald Dworkin, David Lyons, Richard Norman and Charles Taylor in R.M. Stewart, ed., Readings in Social and Political Philosophy (New York, NY: Oxford University Press, 1986).

49. M. Nussbaum, supra note 1 at 70.

50. Ibid, at 57.

51. Ibid, at 70.

52. Ibid, at 57.

53. This is one reason, among others, why the accusations of liberal essentialism found among some critiques rings so hollow and seems so misplaced.

54. J. Waldron, supra note 31 at 132.1 should point out that in this passage, Waldron is raising a tension between divergent views of freedom, and thus different strains of liberalism. Thanks to an editor of Canadian Journal of Law and Jurisprudence, for prompting me to clarify this point.

55. An amending formula to a constitution would be one such example. This is tied into the commitment to the rule of law—a commitment which has been the focus of critiques of liberalism by Critical Legal Studies scholars. See A. Airman, Critical Legal Studies: A Liberal Critique (Princeton, NJ: Princeton University Press, 1990).

56. J. Waldron, supra note 31 at 144.

57. J. Waldron, ibid, at 145. Ronald Dworkin is the best known proponent of this way of understanding contemporary liberalism.

58. For a perfectionist take on the conception of neutrality, which does not grant its centrality or even necessity for liberalism, see Joseph Raz supra note 32. See also Leslie Green supra note 32.

59. Whether or not it is actually possible for a liberal state to actually do so is another story. This question has been the focus of a huge number of critiques of liberalism from communitarians, socialists, feminists, deep ecologists and others.

60. This section of the paper draws heavily on Martha Nussbaum’s monograph, The Feminist Critique of Liberalism, supra note 1.

61. The same cannot necessarily be said of more organic or communal political philosophies.

62. M. Nussbaum, supra note 1 at 76. Liberal feminism, Nussbaum says, asks each and every woman to “distinguish the question of her own well-being from the question of the well-being of others, and notice what tensions may exist between the two, even if they are, as they so often are, bound up in one another”. Ibid.

63. M. Nussbaum, supra note 1 at 76.

64. In Jeremy Waldron, “When Justice Replaces Affection” (1988) 11 Harv. J. of L. & Publ. Pol’y 625 at 634. Waldron talks about rights as fallbacks. Rights are there for individuals to rely on, no matter what happens to their attachments.

65. Dworkin talks about rights as “trumps”, supra note 36; Robert Nozick talks about rights as “side constraints” mAnarchy, State and Utopia (New York: Basic Books, 1974; and Joseph Raz, in The Morality of Freedom, conceives of rights in terms of “interests urgent enough to ground duties”. See M. Freeden, Rights (Minneapolis: University of Minnesota Press, 1991); and L.A. Jacobs, Rights and Deprivation (Oxford: Clarendon Press, 1993). There is a vast literature and myriad debates on the topic of rights. For a representative sample of views and approaches see the collection of papers in J. Waldron, ed., Theories of Rights (Oxford: Oxford University Press, 1984); and the more recent papers included in M. Leahy & D. Cohn-Sherbok, eds., The Liberation Debate: Rights at Issue (London: Routledge, 1996). Thanks are due to Andrea Austen for the reminder to clarify the different accounts here.

66. For example, see Gail Bingham’s findings in “How Efficient Are Environmental Dispute Resolution Processes?” in G. Bingham, Resolving Environmental Disputes: A Decade of Experience (Washington, DC: The Conservation Foundation, 1986). She finds that it is difficult to find accurate bases for comparison, but even if one can find approximate ones the research does not necessarily weigh heavily in favour of alternative dispute resolution.

67. See the articles in the special Alternative Dispute Resolution issue (1995) 34 Alta L. Rev. on the projects in the Alberta Court System. Also see P. Bowal, “The New Ontario Judicial Alternative Dispute Resolution Model”, ibid. 206. For an American perspective, see L.J. Schiffer & R.L. Juni, “Alternative Dispute Resolution in the Department of Justice” (1996) Natural Resources and Environment at 11-12, 66.

68. The report, discussed in R.F.X. Marentette, supra note 15 at 8, is from 1989.

69. L. Fuller, “The Forms and Limits of Adjudication” (1978) 92 Harv. L. Rev. 353.

70. M. Bailey, supra note 12 at 143. Bailey is relying upon Lon Fuller’s work here.

71. The list is modified from the one presented by Roger Fisher & William Ury, supra note 1 at 20.

72. See T. Tyler & A. Lind, The Social Psychology of Procedural Justice (New York: Plenum Press, 1988).

73. J. Macfarlane, “Introduction” supra note 9 at xi. See also D. Tannen, The Argument Culture: Moving From Debate To Dialogue (New York: Random House, 1998).

74. J. Macfarlane, “The Mediation Alternative” in J. Macfarlane, ibid, at 5.

75. J. Macfarlane, “Introduction” ibid, at xi and “The Mediation Alternative”, ibid, at 2.

76. C. Morris, supra note 10 at 311.

77. Sandra Gilbert’s eloquent account of her passion for accountability leading her to undertake litigation in the case of her husband’s wrongful death is a case in point. She quotes a commentator on malpractice suits as saying: “it is the question of accountability which has proved to be [of most importance] to victims … this means simply that something is done to ensure that those responsible … are required to give an account of themselves, that an explanation is given to the victim or family, and that steps are taken to try to avoid a similar accident happening again”. As that book, and other treatments of similar issues makes clear, she did not get the answers she sought, which ultimately led her to share the scepticism expressed by many lawyers and healthcare professionals about the law’s ability to resolve problems of that nature. Sandra Gilbert, Wrongful Death: A Memoir (New York: Norton and Company, 1997) at 5, 7.

78. R. Fisher & W. Ury, supra note 1 at 32.

79. Howard Raiffa, The Art and Science of Negotiation (Cambridge, MA: Belknap Press, 1982). Quoted in D.P. Emond, supra note 3 at 763.

80. L. Fuller, “Mediation—Its Forms and Functions” (1971) 44 S. Cal. L. Rev. 305 at 308.

81. F. Sander, supra note 28.

82. D.P. Emond, supra note 3 at 769.

83. C. Menkel-Meadow, “The Many Ways of Mediation: The Transformation of Traditions, Ideologies, Paradigms and Practices” (1995) 11 Negotiation J. 217 at 218.

84. C. Morris, supra note 10 at 305.

85. Some accounts of social justice are even more modest; they hope that the outcome of ADR would perhaps neutralize, or at least not exacerbate, preexisting inequalities.

86. In that piece Menkel-Meadow, supra note 83, reviews the following books: R.A.B. Bush & J.P. Folger, The Promise of Mediation: Responding to Conflict Through Empowerment and Recognition (San Francisco, CA: Jossey-Bass, 1994); D.M. Kolb & Associates, When Talk Works: Profiles of Mediators (San Francisco, CA: Jossey-Bass, 1994); S.E. Merry & N. Milner, eds., The Possibility of Popular Justice: A Case Study of American Community Justice (Ann Arbor: University of Michigan Press, 1993).

87. I have slightly modified the order of presenting the models.

88. C. Menkel-Meadow, supra note 83 at 230.

89. On storytelling, see J. Rifkin, J. Millen & S. Cobb, “Toward a New Discourse for Mediation: A Critique of Neutrality” (1991) 9 Mediation Q. 151-164. See L. Cooks & C. Hale, supra note 11, for an account of mediation based on communicative ethics.

90. See the work of Lawrence Susskind: L. Susskind & P. Field, Dealing With An Angry Public: The Mutual Gains Approach to Resolving Disputes (New York: The Free Press, 1996); L. Susskind & J. Cruikshank, Breaking the Impasse: Consensual Approaches to Resolving Public Disputes (New York: Basic Books, 1987); L. Susskind & D. Madigan, “New Approaches to Resolving Disputes in the Public Sector” (1984) 9 The Justice System J. 179.

91. On the topic of quality, see R.A.B. Bush, “Defining Quality in Dispute Resolution: Taxonomies and Anti-Taxonomies of Quality Arguments” (1989) 66 U. Denver L. Rev. 335; and D. Luban, “The Quality of Justice” (1989) 66 U. Denver L. Rev. 381.

92. R.A.B. Bush & J.P. Folger, supra note 86 at 81.

93. Ibid.

94. Ibid.

95. C. Menkel-Meadow, supra note 83 at 220. The problem is not just the vagueness of the terminology, but also that the existence of many competing accounts of “more moral and ethical ways of being” is not really grappled with. The authors need to come to terms with the implications of moral conflict and moral pluralism.

96. C. Morris, supra note 10 at 302.

97. F. Sander supra note 28 at 330-31.

98. R. Fisher & W. Ury, supra note 1 at 4.

99. Ibid. at 23.

100. Ibid, at 23.

101. J.M. O’Neill, C. Laycock, & R.L. Scales, Argumentation and Debate (New York: Macmillan, 1925) at 1.

102. R. Fisher & W. Ury, supra note 1 at 24.

103. Interestingly enough, my impression is that the various models do not differ as much in terms of process—the actual carrying out of mediation practices—so much as in terms of description of those tasks and stages and the ways in which description is linked to prescription—the normative framework providing meaning and interpretation to the practices.

104. During a talk given by a very prominent and successful pragmatic mediator, the mediator dismissed the “transformative approach”, saying that it was incomprehensible to him and resembled not at all what he thinks he is doing when he does mediation.

105. I am referring here to the suspicion that one finds in some works of critical postmodernism, which tend to dismiss traditional ethical theory along with liberal political theory as being, in effect, one and the same. Of course, nowadays, one can find treatments of “ethics” under the heading “postmodern ethics”, although what tends to be presented in such works does not much resemble the traditional subject matter of ethics as taught in philosophy departments. Prior to that, there have been several works dealing with Marxism and ethics as well as a burgeoning literature of feminist ethics, only some of which is even implicitly liberal in orientation. The point still stands, nevertheless, that there is in many people’s minds an association between conventional ethical theory and liberal political theory. For a discussion of traditional ethical theory and its implications for mediation, see Kevin Gibson, “The Ethical Basis of Mediation: Why Mediators Need Philosophers” (1989) 7 Mediation Quart. 41. It needs to be said that Gibson’s survey of the field of contemporary ethics is too limited; his neglect of feminist ethics, for example, is a serious omission.

106. Supra note 23 at 364. Lax and Sebenius also mention the other cliché “sound ethics is good business” (others say “being ethical is good business”), but, of course as any text on business ethics quickly demonstrates, that is not always the case.

107. L. Cooks & C. Hale, supra note 11 at 57, make points along these lines.

108. Definition taken from the Collegiate Dictionary (1971 edition), and found in L. Hay, C. Carnevale & A. Sinicropi, “Professionalization: Selected Ethical Issues in Dispute Resolution” (1984) 9 Justice System J. 228 at 228.

109. As Linda Hay, Carol Carnevale and Anthony Sinicropi put it: “Only a system meriting public and disputant confidence will receive approval, and if trust is not gained or is somehow lost, the system will be criticized, modified or may even cease to function in an effective manner”. Ibid. at 229.

110. L. Cooks & C. Hale, supra note 11 at 60.

111. This part of the discussion draws heavily upon Ingrid Leman Stefanovic, “A Code of Ethics for Short Hills Park” in A. Wellington, A. Greenbaum & W. Cragg, eds., Canadian Issues in Environmental Ethics (Peterborough, ON: Broadview Press, 1997).

112. C. Morris, supra note 10 at 318. Morris is quoting from R.A.B. Bush, “A Reply to the Commentators on the Ethical Dilemma Study” (1994) J. of Dispute Resolution 1 at 87-91.

113. This has become very clear to me after having read through codes of ethics for various professions, such as for nurses and archivists. There are terms and concepts which are commonly understood by the members of the community, but which would need explaining to a lay audience. Such language articulates shared values acquired through professional education and training.

114. See I.L. Stefanovic, supra 111 for elaboration on how this occurs.

115. L. Cooks & C. Hale, supra note 11 at 60.

116. Ibid, at 61.

117. Ibid.

118. C. Morris, supra note 10 at 321.

119. Ibid, at 321. Morris is quoting from Mediation UK, “Article II” Mediation UK Practice Standards (Bristol: Mediation UK, 1993).

120. Ibid, at 322. Morris is quoting from American Arbitration Association (AAA), American Bar Association (ABA) & Society of Professionals in Dispute Resolution (SPIDR), “Article III” Model Standards of Conduct for Mediators (Washington, DC: Society of Professionals in Dispute Resolution, 1995).

121. S.C. Grebe, K. Irvin & M. Lang, supra note 11 at 142. The wording is derived from the American Bar Association Code.

122. M. Bailey, supra note 12 at 146 (quoting from OAFM’s code of conduct).

123. See Hay, Carnevale & Sinicropi, supra note 108 for elaboration on the confidentiality issue.

124. My discussion in this part of the paper owes much to Catherine Morris’ treatment of the topic, supra note 10; and to Ingrid Leman Stefanovic’s paper, supra note 111.1 am only dealing briefly with issues that are presented in substantial depth and detail in those pieces.

125. C. Morris, ibid, at 318.

126. I.L. Stefanovic, supra note 111 at 247; and C. Morris, ibid.

127. C. Morris, ibid.

128. I.L. Stefanovic, supra note 111 at 247.

129. Ibid.

130. Ibid.

131. Ibid.

132. I have found that professionals themselves—for instance, nurses and archivists—have reported that they find it reassuring to be able to point to codes of ethics to refuse to participate in unethical practices, even when requested or ordered to do so by employers, for instance.

133. C. Morris, supra note 10 at 317.

134. C. Moore, The Mediation Process: Practical Strategies for Resolving Conflict (San Francisco, CA: Jossey-Bass, 1986). Moore is quoted by Catherine Morris ibid, at 319.

135. C. Morris, ibid, in footnote 61.

136. Supra note 89 at 151-64.

137. Ibid, at 152.

138. C. Morris “The Trusted Mediator”, supra note 10 at 319 in footnote 61.

139. Ibid.

140. J. Rifkin, J. Millen & S. Cobb, supra note 89 at 153.

141. Ibid, at 153. Rifkin, Millen and Cobb refer to Deborah Kolb’s account of the term in D. Kolb, “To Be A Mediator: Expressive Tactics in Mediation” (1985) 41 J. Social Issues 11.

142. As Catherine Morris suggests, the use of the term ‘neutrality’ by Rifkin, Millen and Cobb “may be confusing to those who do not take the time to read their definition”. See C. Morris “The Trusted Mediator”, supra note 10 at 319 in footnote 61.

143. D. Amy, “The Politics of Environmental Mediation” (1983) 11 Ecology Law Q. 1 at 14 in footnote 54. The discussion in Amy’s piece, and in the present work, both draw heavily on arguments made by Gerald Cormick. See Gerald Cormick, “The Myth, the Reality and the Future of Environmental Mediation” 24 Environment 14.

144. Which is why mediators with legal training at least would be best suited to performing this kind of role, i.e., mediating in accordance with the evaluative model.

145. The hope of course is that a settlement could do both—satisfy the wishes of the particular individuals and contribute to community building and social justice.

146. The phrase is borrowed from Gerald Cormick. See D. Amy, supra note 143 at 14 in footnote 54.

147. C. Morris, “The Trusted Mediator”, supra note 10 at 319 in footnote 61. Morris is discussing the work of Rifkin, Millen & Cobb (supra note 89). See also: R.M. Fuller, W.D. Kimsey & B.C. McKinney, “Mediator Neutrality and Storytelling Order” (1992) 10 Mediation Quart. 187.

148. Ibid.

149. Ibid, at 321.

150. D. Amy, supra note 143 at 7.

151. For a representative sample of papers in the Critical Legal Studies vein, see D. Kairys, ed., The Politics of Law: A Progressive Critique (New York: Pantheon Books, 1982). This book was republished in 1998 by Basic Books. One of the earliest and most widely known accounts of CLS can be found in R.M. Unger’s “manifesto”, The Critical Legal Studies Movement (Cambridge, MA: Harvard University Press, 1986). The aim of the Critical Legal Studies movement was to provide a trenchant and sustained critique of liberal legal and political philosophy (sometimes referred to as “trashing”). Critical Legal Studies flourished in the pages of law journals for a relatively short period about ten years ago, and seems to be promoted far less vociferously and far less frequently nowadays. Whether that is because the supporters of the critical legal studies “movement” are so diversified and fragmented that an umbrella concept is harder to recognize, or whether theorists have moved on to postmodernism or other current fashions in legal theory is hard to know. Perhaps it is still thriving, but I just don’t canvas enough law journal issues to notice its lingering presence.

152. A quote from an interview respondent—a lawyer—in J.S. Auerbach, Justice Without Law (New York: Oxford University Press, 1983) at 21.

153. D. Amy, supra note 143 at 16. Amy is referring specifically to environmental issues, but I have adapted the quote for my own purposes here.

154. The whole topic of dealing with moral conflict is one in which I am particularly interested, but it is beyond the scope of this paper to address it here. See W.B. Pearce & S.W. Littlejohn, Moral Conflict: When Social Worlds Collide (Thousand Oaks, CA: Sage Publications, 1997).

155. C. Provis, “Interests vs. Positions: A Critique of the Distinction” (October 1996) Negotiation Journal 305 at 307. The distinction between subjective and objective accounts of welfare are a standard part of the literature debating the merits of various versions of utilitarianism.

156. As Chris Provis puts it: “it is only sometimes that interests are what are good for people as well as being what they want”. Ibid.

157. As Fisher and Ury put it: “Behind opposed positions he shared and compatible interests, as well as conflicting ones. We tend to assume that because the other side’s positions are opposed to ours, their interests must also be opposed…. In many negotiations, however, a close examination of the underlying interests will reveal the existence of many more interests that are shared or compatible than ones that are opposed”. Supra note 1 at 42.

158. Supra note 155 at 319.

159. Ibid, at 317.

160. J.J. White, “The Pros and Cons of “Getting to YES” (1984) 34 J. Legal Ed. 115 at 116. The phrase “exploring for mutual profitable adjustments” comes from Thomas Schelling, “An Essay on Bargaining” (1956) 46 Am. Econ. Rev. 281.

161. Ibid.

162. Ibid.

163. R. Fisher, “Comment by Roger Fisher” (1984) 34 J. Legal Ed. 120 at 123.

164. I am indebted to the members of the George Mason University Institute for Conflict and Analysis and Resolution (ICAR) Worldview Analysis Group (Frank Blechman, Jarle Crocker, Jayne Docherty and Steve Garon) for this term, which connotes both practice oriented academics and academically oriented practitioners. Theory meets practice.

165. Amy here is quoting Richard Abel. D. Amy, supra note 143 at 16. See R.L. Abel, “The Contradictions of Informal Justice” in R.L. Abel, ed., The Politics of Informal Justice: The American Experience, vol. 1 (London: Academic Press, 1982).

166. C. Menkel-Meadow, supra note 83 at 231.

167. M. Bailey, supra note 12 at 146.

168. M. Bailey, for one, focuses her critique in these terms. See ibid, note 12.

169. Supra note 16 at 198.

170. J. Macfarlane makes this point; supra note 9.

171. C. Moore, supra note 134 at 299.

172. A. Altman, Critical Legal Studies: A Liberal Critique (Princeton, NJ: Princeton University Press, 1990) at 6.

173. C. Morris, supra note 10 at 305 in footnote 8. One of the most prominent exponents of such a view is Richard Abel. See his piece, “The Contradictions of Informal Justice” supra note 165.

174. Whether it would be perceived as an equally effective criticism against arbitrators, or particularly, negotiators themselves is another story.

175. D. Amy, supra note 143 at 10 and 13.

176. Supra note 83 at 220. Bush & Folger, supra note 86, distinguish approaches to mediation in terms of the following categories: Satisfaction, Social Justice, Oppression and Transformation. Menkel-Meadow’s discussion draws upon those categories, as does mine in this section of the paper.

177. I am often tempted to play with the title of a recent Stanley Fish book (There’s No Such Thing As Free Speech And It’s A Good Thing, Too) and assert that “There’s No Such Thing as Social Consensus and It’s a Good Thing Too”. The gist of Fish’s book differs from the line of reasoning presented in this paper, but it sure is a catchy title. (Oxford: Oxford University Press, 1994)

178. Supra note 83 at 233.

179. Supra note 16 at 202.

180. Supra note 9 at 2.

181. See Carrie Menkel-Meadow, supra note 83, for a discussion of the studies contained in S.E. Merry & N. Milner, The Possibility of Popular Justice, supra note 86.

182. C. Menkel-Meadow, ibid, at 231.

183. Some of this type of analysis (admittedly in a fairly convoluted and rarefied form) can be found in G.C. Pavlich, Justice Fragmented: Mediating Community Disputes Under Postmodern Conditions (London: Routledge, 1996).

184. Supra note 172 at 3. Airman makes these remarks only in reference to liberalism, but I am adapting his quote for my own purposes here.

185. D. Amy, supra note 143 at 14 in footnote 55. Amy suggests that “[o]ne can draw parallels here between the perspective on political issues fostered by environmental mediation and the perspective fostered by the theory of interest-group pluralism”.

186. Supra note 19.

187. D. Amy, supra note 143 at 19.

188. This notion is fairly widespread; a recent Canadian articulation was presented in Rex Murphy’s review of Reflections of a Siamese Twin: Canada At the End of the Twentieth Century by John Ralston Saul in The Globe and Mail (15 November 1997) D17.

189. This is central to Bruce Ackerman’s conception of liberal justice in his book, B.A. Ackerman, Social Justice in the Liberal State (New Haven, CT: Yale University Press, 1980).

190. Supra note 83 at 233.

191. Ibid.

192. I hesitate to label this section with anything so definitive sounding a phrase as “conclusions”. Given the speculative and exploratory nature of this paper, I prefer to use the moniker chosen instead.

193. For instance, instead of dragging out lengthy and costly trademark litigation to end up with a winner and a loser, companies facing situations of potential confusion between marks could instead get together to negotiate mutually agreeable arrangements to avoid the potential confusion. I owe this suggestion to Professor David Vaver of Osgoode Hall Law School. See J.R. Sobieraj & M.G. Anderson, “Contracting for Alternative Dispute Resolution: An Application to Intellectual Property” (1994) 2Intellectual Property Law 111.

194. D. P. Emond, supra note 3 at 769. See also The Honourable Mr. Justice George Adams & Naomi Bussin, supra note 6.

195. D.P. Emond, ibid, at 763. As Emond puts it, the trick for lawyers and others is “to know when and how to use each process and then to sell that approach to the parties.”

196. S.C. Grebe, K. Irvin & M. Lang, supra note 11 at 135, say that authors have not generally attempted to do so. They suggest that mediators have tended to take an intuitive approach to ethics rather than an analytical one, such as they recommend in their paper.

197. C. Morris, supra note 10 at 302.

198. Ibid.

199. As Kevin Gibson argues in “The Ethical Basis of Mediation: Why Mediators Need Philosophers”, supra note 105 at 49.

200. The pieces I have come across which specifically address the potential contribution of ethical theory have examined a far too narrow range of normative theories. They have tended to look at the ones that are found in a standard text of the old school—namely, deontology, utilitarianism and perhaps virtue theory—as, for instance Kevin Gibson does supra note 105. Catherine Morris, in “The Trusted Mediator—Ethics and Interaction in Mediation”, supra note 10, does add in communicative ethics and feminist ethics of the Gilligan and Noddings “Care Ethic” version. But she does not acknowledge the significant debates about care ethics within feminist circles. See, for instance, Martha Nussbaum’s treatment of the topic in The Feminist Critique of Liberalism supra note 1 or Rosemarie Tong, “Criticisms of Noddings’s Ethic of Caring”, in M. Timmons, ed., Conduct and Character: Readings in Moral Theory, 2nd ed. (Belmont, CA: Wadsworth, 1995). The discussions of ethics would be considerably enriched if a wider range of contemporary ethical theorizing—such as those found in L. May, S. Collins-Chobanian & K. Wong, eds., Applied Ethics: A Multicultural Approach, 2nd ed. (Upper Saddle River, NJ: Prentice Hall, 1998) were taken into account.

201. See supra note 83 at 217-23.

202. Ibid, at 220. Menkel-Meadow talks about these notions—commitment to democratic theory or concern for progressive means, etc. as meta-issues.

203. I realize that it is unfashionable in many circles to be unapologetically a supporter of liberalism. Yet, what some perceive to be its greatest weakness—namely the proverbial fence sitting—is to my way of thinking its greatest strength in the context of dispute resolution. Likewise, the naïveté many perceive in liberalism can also be viewed as productive, exemplifying the “leap of faith” that significant and desirable social change can be brought about in incremental, piecemeal fashion. Only liberals are both foolhardy (as some think) and prescient (as others hope) enough to envisage democratic dialogue and debate as worthwhile but also feasible ways to achieve goals related to social justice. If one thinks simultaneously at the micro and the macro level, liberalism alone, it seems to me, can offer solace and sustenance. Liberalism, in conjunction with alternative dispute resolution, provides resources for those who wish to help individuals, qua individuals, to get along in daily life as well as for the adherents of contested and competing conceptions of the body politic to get along.

It is not just that neighbours have to live together in the same neighbourhood, but also that communitarians, radical feminists, socialists, religious fundamentalists and advocates of gay rights or gay liberation all have to end up living together within the same liberal democratic society—at least until the revolution comes. (And then, of course, it may end up being someone else’s revolution.) Liberalism not only accepts the necessity of pluralism, but it makes virtues out of toleration and neutrality in the face of incommensurability. Furthermore, it envisages ways to get people to engage in dialogue and debate; this generates “creative options” for ordinary folk, as well as for social and political theorists, to address—if not actually resolve—their differences.

204. J. Waldron, supra note 31 at 149-50. Waldron says this about class conflict, but the sentiment applies equally to gender conflict or any other of the currently recognized sources of social conflict, including race, ethnicity, ability, sexual orientation, age and so on.

205. M. Nussbaum, supra note 1 at 80.

206. I have long been fascinated by certain features of liberal democratic societies: (a) the remarkable range and diversity of values and belief systems held and expressed by citizens; (b) the institutional design and organizational “fit” of many such societies; (c) the role of governmental and non-governmental organizations, of laws and policies in trying to ensure the flourishing of people—where flourishing is characterized in terms of an autonomy that is consonant with respect for freedom and equality. This is, of course, the ideal liberalism and the exalted conception of its potential. As numerous critics have continued to point out, liberalism as manifest in many liberal democratic societies has many weak spots and even self-defeating aspects. The reality of life in such societies often falls far short of the noble and laudatory versions liberal political philosophers have envisaged. For some people, that means giving up on liberalism. For others, such as myself, it means working harder to try to figure out how to make liberalism live up to its promise.

I see the articulation and expression of reconstitutive liberalism as a larger project than is indicated in the present work, one which has many components: a pluralist conception of ethics, a pluralist conception of dispute resolution and moreover, but perhaps more idiosyncratically, a pluralist conception of property rights and market relations. The motivating force of this project for me personally is the desire to respond to the challenge: “what’s wrong with liberalism?”, or perhaps I should say: “what’s right about liberalism?”. I wanted to provide a constructive proposal, to affirm the potential of liberalism. I hope to reconcile my commitments to feminism, to environmentalism and to social justice generally, with my affinity for, and reliance upon, liberalism. Along the way, I have set out to discover why I have tended to feel so apologetic about being a liberal, when I am not one who is temperamentally inclined to be apologetic about my beliefs and values. I wish to give thanks to all the radical and conservative political thinkers who have pushed and prodded me, albeit indirectly, into clarifying and refining my position, and ultimately helped me to gain the confidence and determination to pursue this project—in however tentative and piecemeal a manner.

If this were a treatise in political philosophy I would, of course, have to dwell on the niceties of my particular conception of liberalism, how it both resembles and differs from the reigning orthodoxies of liberal theory, and what its implications are for prominent issues of contemporary public policy. Fortunately, that is beyond the scope of the present work, so I will simply flag the larger project for future attention, and contain the focus of the present work. In this paper, I am only addressing the potential contribution of contemporary liberal political morality to the tasks of formulating and promoting codes of ethics in the context of alternative dispute resolution.