ADR, transformative dispute resolution, mediation, deliberative government, moral development, ethno-political conflict
Why do proponents of Transformative Dispute Resolution (TDR) defend the Theory in such intransigent, exclusivist, and grandiose terms? TDR is a mature theory, and a relatively sophisticated one, and qualities of this sort usually go hand in hand with a balanced, refined, and well-modulated sense of self. But TDR proponents will have none of that. They make ambitious (some would say outlandish) assertions about the Theory’s capacity to develop moral and political character, reform deliberative government, and resolve ethno-political conflict, while simultaneously rejecting overtures from sympathetic outsiders to rein in the overstated aspects of these claims and craft a more plausible view. While not the most popular theory in American dispute resolution scholarship, TDR is the most self-assured, the most insular, and the most overblown, and this combination of qualities, coupled with the Theory’s seeming ability to thrive in the face of withering criticism, makes it a interesting curiosity well worth re-visiting.
TDR is confusing in ways one would not expect. At the most basic level, for example, it is equivocal about what it transforms. Is it the personal moral character of disputants and their representatives, the formal institutions and procedures of the dispute resolution system, the disputing practices of society in general, an understanding of the nature of disputing, the behavior of parties in individual disputes, all of the above, or something else? Similarly, over what time frame does this transformation take place? Is it the lifetimes of individuals and institutions using TDR methods and techniques, the duration of particular disputes resolved with TDR practices, or some other, middle-ground period shorter than a lifetime but longer than a dispute? It also is not clear what counts as proof that transformation has occurred? Are party reports of changed behavior adequate; is it enough that parties believe they have been transformed? Or is more objective data, such as quantitative changes in disputing patterns over time, or recordings, transcripts, and summaries of actual disputes in which TDR practices can be shown to have transformative effects, needed as well?
It is not easy to judge the efficacy of TDR on the basis of the TDR literature alone. Reports of the Theory’s successes often are speculative and exaggerated, descriptions of its substantive content often are ambiguous and contradictory, arguments for its effectiveness often are illogical and confused, and the empirical evidence on which these reports and arguments are based often is suspect or non-existent. Given this, it is difficult to understand why TDR proponents would cling so tenaciously to such a questionable conception of dispute resolution, defending it over and over again in increasingly louder tones (as if giving directions to a non-native speaker who did not understand the first time). There are substantial costs, both to TDR scholarship in particular, and to legal dispute resolution scholarship in general, in discussing the subject in this way.
14 Cardozo Journal of Conflict Resolution 301(2013).
Dispute Resolution and Arbitration | Jurisprudence | Litigation
14 Cardozo Journal of Conflict Resolution 301 (2013).