'Living with 'ADR': Evolving Perceptions and Use of Mediation, Arbitration and Conflict Management in Fortune 1,000 Corporations' by Thomas Stipanowich & J. Ryan Lamare in (2013)
Harvard Negotiation Law Review (Forthcoming)
comments that
As attorneys for the world’s most visible clients, corporate counsel played a key role in the transformation of American conflict resolution in the late Twentieth Century. In 1997 a survey of Fortune 1,000 corporate counsel provided the first broad-based picture of conflict resolution processes within large companies. In 2011, a second landmark survey of corporate counsel in Fortune 1,000 companies captured a variety of critical changes in the ways large companies handle conflict. Comparing their responses to those of the mid-1990s, clear and significant evolutionary trends are observable, including
- a further shift in corporate orientation away from litigation and toward “alternative dispute resolution (ADR),”
- moderated expectations of ADR;
- increasing use of mediation, contrasted with a dramatic fall-off in arbitration (except, importantly, consumer and products liability cases);
- greater control over the selection of third-party neutrals;
- growing emphasis on proactive approaches such as early neutral evaluation, early case assessment, and integrated systems for managing employment disputes.
This article summarizes and analyzes the results of the 2011 Fortune 1,000 survey, compares current data to the 1997 results, and sets both studies against the background of a half-century of evolution. The article concludes with reflections on the future of corporate dispute resolution and conflict management and related research questions.
The authors note that
The present survey raises an assortment of considerations for future research, including subjects to be developed and studied.
As a preliminary matter, it is time to acknowledge the shortcomings of the term “ADR,” a catch-all concept comprising the entire range of diverse alternatives to court trial. While it may be useful as a term of convenience in discussions of conflict management, its utility in research into the dynamics of public and private dispute resolution is inversely related to the very breadth and variety of the approaches it embraces. Wherever possible, queries about attitudes toward “ADR” should give way to more specifically tailored questions.
Broad-based surveys like the present one and its 1997 precursor are useful in helping to identify broad trends and alert us to key “tipping points” such as the recent reduced emphasis on arbitration. They are, however, not designed to provide meaningful insights into the dynamics of individual dispute resolution processes or of conflict management systems; instead, they offer a springboard for research on these issues. The latter include (1) the priorities and expectations of business clients and other parties regarding dispute resolution and conflict management; (2) the performance and effectiveness of multi-step dispute resolution approaches, or of conflict management systems; (3) the dynamics of mediation processes, including mediator styles and strategies and the interplay between mediators and advocates; (4) arbitrator styles and strategies in pre-hearing and hearing management, deliberating and rendering awards; and (5) the impact of neutral experience, education and professional background.
