Alternative to What?

   We Americans, young as we and our institutions are, have a lot of hubris. As a father of three, I ought not be surprised by the congruence of youth and hubris. My mediation work with the Italian judiciary has kindled these thoughts in me.

   Last fall I had occasion to travel to Italy to discuss mediation . And last month I joined one of my Italian colleagues in attending a seminar on international legal systems held at the University of California, Berkeley.

   While in Italy, I referred to mediation as an alternative dispute resolution process. At Berkeley, in the company of jurists from 40 different countries, I heard other American jurists refer to mediation, and arbitration, again as alternative dispute resolution techniques.

   My question is: Alternative to what?

   What we call alternative looks very like the traditional systems long in use in Europe, while our traditional systems likely look alternative to them. Our notions of lay juries, of judges removed from fact determinations;; and, most emphatically, of discovery look downright foreign to most of the rest of the world. Arbitration, which we characterize as alternative, looks most similar to many of their traditional systems.

   While in Italy, I referred to mediation as an alternative dispute resolution process. At Berkeley, in the company of jurists from 40 different countries, I heard other American jurists refer to mediation, and arbitration, again as alternative dispute resolution techniques.

   It is not my intention to compare legal and dispute resolution systems. It is my intention to question the notion that some, but not all, systems and processes are alternative – which implies that others are non-alternative, or more normal.

   There are countless ways in which people, organizations and societies respond to disputes. Each one is alternative to another. It may be more useful - and more mature - to replace the notion of "alternative", and its connotations, with the word "appropriate", and its associated notions.

   In the mid 1960s Harvard Law Professor Frank Sander coined the phrase "multi-door courthouse". We have seen that courthouse come to exist. There is an explosion of court-annexed arbitration, mediation, neutral evaluation and similar programs in operation. They are all referred to as "alternative dispute resolution programs."

   What does it mean when we characterize every process save one as alternative? Does it make the singular process more valid than the others? Does it elevate that process above the others in the public’s perception? Does it encourage the use of one, and discourage another? And, if so, is that what we wish to be doing?

   Save for the inevitable, all is alternative. "Getting To Yes" and "Getting Past No" are those two negotiation primers which developed from the work of the Harvard Negotiation Project. In those books the authors use the acronym BATNA for the phrase "best alternative to a negotiated agreement".

   I often refer to BATNA during a mediation as an introduction into discussion of the alternatives to settlement. In the context of a pending lawsuit, trial is the most often acknowledged alternative. Does that make trial an alternative dispute resolution process?

   I would like to propose that we begin to think of all dispute resolution processes as alternatives, and allow ourselves to consider those processes most appropriate to each particular dispute as the most suitable alternative for that case at that time.

   There are alternatives, and there are appropriate alternatives. I find the word “appropriate” to be far more, well, appropriate than the word “alternative”. I suspect that our international colleagues would find it more respectful, too.

This article first appeared in the San Francisco Daily Journal on September 2, 1998.