Jonathan Crowe, Professor of Law, Bond University
Robert Angyal has posted an interesting response to Rachael Field’s earlier post about the National ADR Principles. Unfortunately, his post contains several conceptual confusions. This reply unpacks some of them.
First, Angyal asks ‘what is meant by “ADR”?’ Now, everyone knows that ‘ADR’ means alternative or appropriate dispute resolution, referring to a range of dispute resolution options that offer alternatives to the courtroom.
For Angyal, apparently, ‘ADR means going to court’. This must cause a great deal of confusion, because nobody else uses the term that way. It seems that Angyal subscribes to what is sometimes called the ‘Humpty Dumpty Theory of Language’:
‘When I use a word,’ Humpty Dumpty said, in rather a scornful tone, ‘it means just what I choose it to mean – neither more nor less.’
Next, Angyal raises a very valid and important query. When we draft standards or principles for ADR or mediation, are we engaged in a descriptive or normative enterprise? Are we trying to describe ADR as it is or as it ought to be?
The way Angyal frames the question seems to assume a binary answer. That is, our objective must be either descriptive or normative, but not both. However, this is too simplistic. ADR and mediation are functional concepts – they describe human practices with a specific purpose or goal.
As I have argued in detail elsewhere, functional concepts are best described using what is sometimes called a ‘function+’ theory – that is, a theory that combines their common descriptive characteristics with their normative aim.
The answer to Angyal’s query, then, is that any adequate account of ADR or mediation must consider both its descriptive and normative dimensions. However, Angyal is sceptical about the very possibility of a normative analysis.
Angyal assumes that any normative analysis of ADR or mediation must be based on ‘moral norms’. He then challenges this, saying:
First, who laid down these moral norms, and by what authority did they do so? Second, and equally fundamental, why should we assess mediation by moral norms at all?
A preliminary issue arises here. Why does Angyal assume that the normative point of ADR or mediation must be based on ‘moral norms’? Human practices and institutions typically have some internal point or goal, but this objective need not necessarily be an overtly moral one.
In any event, even if we accept Angyal’s assumption, his two questions are odd. In relation to the first question: why assume that if moral norms exist, they must be ‘laid down’ by someone?
If two physicists are arguing about the existence of black holes, it would be weird for one of them to ask the other, ‘Who created these black holes, and by what authority did they do so?’ The question is whether black holes (or moral norms) exist, not who created them.
Angyal’s second question has a straightforward answer. The reason we should assess ADR or mediation by moral norms is that morality, by its very nature, is the fundamental evaluative standard we use to assess human actions and practices.
However, Angyal doubts this. He claims:
We don’t normally assess the practice of civil dispute resolution by moral norms; no, we assess it by criteria such as efficiency, cost, access, speed, compliance with the rules of natural justice, and so on. Why should mediation be different?
Angyal seems to accept here that we assess ADR or mediation by reference to normative criteria internal to the practice. However, he denies these criteria are moral ones. This raises the question: where does the normative weight of these criteria come from?
It seems plausible that ‘efficiency, cost, access, speed [and] natural justice’ are morally valuable – if not in themselves, then because they advance some deeper objective. However, Angyal seems to think they are morally inert. If so, why do we care about them?
Angyal then turns to the issue of whether fairness is relevant to mediation. He begins by contending that the question, ‘is mediation fair?’, is fundamentally ‘unanswerable’, because ‘the parties will disagree about what’s fair’.
Obviously, though, the fact that people disagree about a question does not mean it is unanswerable. If two physicists disagree about the existence of black holes, this does not mean there is no fact of the matter about whether they exist.
Angyal then claims that ‘parties to a mediation aren’t participating in the mediation because they think it’s a fair process and/or one that will lead to a fair outcome’. He calls this an ‘empirical observation’, but as far as I know he has not conducted any empirical research. He is just relying on his anecdotal impressions from practice.
Angyal argues that ‘fairness is not a concept that’s relevant in mediation’ because parties are driven by considerations of cost and, in particular, the desire to avoid litigation. This leads them to settle even where this may not be objectively fair.
Angyal’s response to this is to ‘abandon questions about fairness in mediation as irrelevant’. However, this seems like a cop out. Suppose a bully is beating people up every day in the playground. He is far stronger than any of the other children.
The children who are beaten up every day might well think ‘fairness is not a concept that’s relevant’ in the playground. If someone says about the bully, ‘that’s not fair!’, they might cynically reply that ‘fairness doesn’t enter the picture’.
Does this mean we should all just give up on changing things and let the bully have his way? Of course not. We should insist on the relevance of fairness, even if it means radically reimagining the way things currently operate.
Angyal’s perspective, in the end, suffers from a lack of imagination. It may be true that fairness does not play a guiding role in many mediations. However, this does not mean it should be abandoned as one of mediation’s ethical goals.