Contract Disputes: The Role of ADR

By Glasner, Kenneth | Dispute Resolution Journal, August-October 2000 | Go to article overview
Save to active project

Contract Disputes: The Role of ADR

Glasner, Kenneth, Dispute Resolution Journal

The function of law may be described as twofold: first, to regulate the affairs of persons (persons include corporations, societies, individuals, and government); second, to establish within the community a level of moral conduct. The success of law may to a greater degree be based on the acceptance by the community of these regulations and the level of conduct maintained in order to resolve disputes.

To some degree, there has been a shift within community expectations with respect to the method by which conflicts are resolved. Parties seem to have a greater desire to see their disputes resolved rather than have their day in court. This concept is not new. One form of alternative dispute resolution, namely arbitration, has been around for centuries. In fact, recourse to the arbitration process has been common practice in England since the middle ages and was codified in 1698.1 Arbitration has been defined in Halsbury as:

[T]he reference of dispute or difference between not less than two parties for determination, after hearing both sides in a judicial manner, by a person or persons other than a court of competent jurisdiction.2

ADR stands for alternative dispute resolution-meaning an alternative to the public court system. I prefer my colleague John Sanderson Q.C.'s interpretation, namely "appropriate dispute resolution," thereby leaving within the arsenal of dispute resolution systems the use of courts for those cases which may require a principle to be established, public vindication, or the infringement of a legal right.

Some years ago a Canadian publication, The Lawyers Weekly, set out the pros and cons of various dispute resolution methods. I reproduce this reference with certain modifications in Fig. 1 (on page 52).

Chief Justice Warren E. Burger said:

A common thread pervades all courtroom contests: Lawyers are natural competitors, and once litigation begins they strive mightily to win using every tactic available. Business executives are also competitors, and when they are in litigation, they often transfer their normal productive and constructive drives into the adversary contest. Commercial litigation takes business executives and their staffs away from the creative paths of development and production and often inflicts more wear and tear on them than the most difficult business problems.... The plaintive cry of many frustrated litigants echoes what Learned Hand implied: "There must be a better way."

Appropriate dispute resolution can take many forms. Basically the intervention of a third party making the decision is at the extreme end of appropriate dispute resolution; it is commonly called arbitration.

Other forms of dispute resolution include:



Early Neutral Evaluation





Rights-Based Mediation

Interest-Based Mediation

Neutral-Based Mediation

The latter two forms have recently been introduced as methods for resolving disputes for selfregulating bodies.

Generally, ADR may be classified into three major areas:

1. Negotiation.

2. Mediation.

3. Adjudication.

This article addresses mediation and adjudication.

The major difference between arbitration and the other forms of ADR is that arbitration imposes a binding decision upon the parties-the other forms require the parties themselves to come to a resolution of the dispute with the assistance of the third party.

A simple comparison between adjudication (arbitration) and interest-based mediation illustrates the flexibility of one process versus the rigidity of the other.


1. Looks to the past.

2. Focuses on facts.

3. Seeks to establish fault/liability.

4. Appoints winners and losers.

5. Is dominated by lawyers.

Interest-based mediation (as opposed to rights-based mediation):


The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Cite this article

Cited article

Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)


1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25,

Cited article

Contract Disputes: The Role of ADR


Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

While we understand printed pages are helpful to our users, this limitation is necessary to help protect our publishers' copyrighted material and prevent its unlawful distribution. We are sorry for any inconvenience.
Full screen

matching results for page

Cited passage

Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25,

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.