Alternative Dispute Resolution: Historical Roots, Philosophy, and Political Agenda

Classroom: WCC 5048

Thursday 3:45-5:15 pm.

Description and Goals

This workshop is about the historical roots, philosophical ideas, and political agendas of Alternative Dispute Resolution (ADR), which encompasses a range of processes, mechanisms, and communicational strategies utilized to manage, resolve, or prevent disputes within and outside the formal legal system. ADR processes are diverse in scope, design, and guiding principles. They can include dialogues, difficult conversations, negotiations, and third-party dispute resolution models like mediation, arbitration, med-arb, restorative justice, and other hybrid models that may involve large-scale conflict management systems at organizational and societal level. This workshop explores the dispute resolution methods created and developed in ADR, such as negotiation, mediation, restorative justice, arbitration, dispute system design, and transitional justice.
Although we will discuss the main purposes and characteristics of each dispute method, unlike traditional ADR courses, this workshop will not focus on programmatic aspects or how to practice such methods. Instead, this course will trace the historical trajectories of each method, revealing the political agendas behind them, and their philosophical underpinnings. Additionally, it will dedicate one session to examine how ADR is transformed in the twenty-first century in response to technological advancements, increased polarization, and growing mistrust in formal legal institutions.
The motivation for this workshop stems from the gradual growth in popularity and relevance of ADR have grown gradually in recent years. This trend is exemplified by the National Conference of Bar Examiners, which is revamping the Bar exam to include skills and knowledge on negotiation and ADR. Additionally, at Harvard Law School, this shift is reflected in the new JD curriculum, where a course on negotiation or leadership has been mandatory since last academic year (2023-2024). These institutional and academic changes have increased the demand for ADR. Yet, many of these courses, if not all, do not delve into the intellectual roots, philosophical ideas, and political visions embedded in these methods. This course aims to fill that gap by exploring these foundational aspects of ADR.
This workshop invites participants to interrogate ADR, question its assumptions and values, and discuss its explicit (and implicit) goals.. Thus, for each method, we will explore the following questions:

• What are these dispute methods, and what are their main characteristics?
• Why were they designed as they were? And how are they practiced now?
• What ideas informed the way these processes were conceived?
• What political agendas were embedded in their original designs?

Participation

This course is open to members of the Harvard community and assumes no prior knowledge of the topics. It is not restricted to Harvard Law School students. Interdisciplinarity is encouraged, as ADR has evolved as an interdisciplinary field drawing from law, economics, social psychology, philosophy, management, and anthropology.

The course is designed so that each session, while related to the others, can also stand alone. Assigned materials will be focused, succinct, and engaging to ensure optimal preparation. I strongly encourage you to complete the required readings before the session to obtain the most benefit from these workshop sessions. However, you can attend even if you have not completed the assigned readings. Active participation is expected from all attendees.

Class session	Topic
Part I - Setting the stage: ADR intellectual roots and grammar
1. Feb. 6 (Thu)	Intellectual roots of ADR
Part II - Opening ADR’s Multiple Doors
2. Feb. 13 (Thu)	Negotiation: From integration to value creation and self-governance.
3. Feb. 20 (Thu)	Mediation: The four trajectories of mediation (e.g., facilitative, evaluative, transformative, and narrative mediation).
4. Feb. 27 (Thu)	Restorative Justice: From seeing conflicts as property to scaling down the state.
5. Mar. 6 (Thu)	Arbitration: From protecting investment and property rights to global governance.
6. Mar. 27 (Thu)	Dispute System Design and Transitional Justice: From scaling up ADR in organizations and society to consultancy of conflict management.
Part III - Looking forward: The Death or Resuscitation of ADR?
7. Apr. 3 (Thu)	Future trends of ADR: The three additions to the ADR multidoor house: online dispute resolution, communicational ethics, and informal justice.

Please see the syllabus for more details on the reading assignments of each session here.

Course Readings

Accessibility Resources and Essentials

**Teaching Staff**

Nicolás Parra-Herrera SJD Candidate & BYSE Fellow at Harvard Law School Civil Discourse Graduate Fellow at Safra Center for Ethics nparra@sjd.law.harvard.edu