Course Syllabus
Alternative Dispute Resolution: Historical Roots, Philosophy, and Political Agenda
Syllabus
Byse Workshop Seminar – Harvard Law School
Instructor: Nicolas Parra-Herrera (nparra@sjd.law.harvard.edu)
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.[1] 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).[2] 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.
Structure
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Class session |
Topic |
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Part I - Setting the stage: ADR intellectual roots and grammar |
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1. Feb. 6 (Thu) |
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Part II - Opening ADR’s Multiple Doors |
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2. Feb. 13 (Thu) |
Negotiation: From integration to value creation and self-governance. |
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3. Feb. 20 (Thu) |
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4. Feb. 27 (Thu) |
Restorative Justice: From seeing conflicts as property to scaling down the state. |
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5. Mar. 6 (Thu) |
Arbitration: From protecting investment and property rights to global governance. |
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6. Mar. 27 (Thu) |
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Part III - Looking forward: The Death or Resuscitation of ADR? |
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7. Apr. 3 (Thu) |
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Session 1 – Intellectual Roots of ADR: Ways of Looking at ADR
In this session, we will examine the key strands that played a crucial role in the emergence of ADR during the 1970s. According to Menkel-Meadow, three distinct strands contributed to the rise of what is known as “Modern” ADR.
The first strand comprises informal justice advocates who sought to de-professionalize dispute resolution and reduce the dominance of lawyers in the conflict industry (e.g., Richard Abel, Sally Engle Merry, and Susan Silbey). The second strand comprised lawyers and legal scholars who criticized the adversarial process and sought to create new or improved processes to achieve better results (e.g., Roger Fisher, Carrie Menkel-Meadow, Robert Mnookin). The third strand was led by justices and lawyers working on or within the judicial administration who used ADR to promote the efficiency of the existing legal processes and save money and time in resolving disputes within the court system (e.g., Warren Burger and Frank Sander). I will refer to these strands as the informal justice, the procedural experimentalism, and the institutional effectiveness strands, accordingly. We will explore the arguments made by these three strands and their understandings of what ADR stands for, its goals, and how human conflict should be treated as well as the main criticisms against these strands.
Assigned material:
- Frank Sander, “Varieties of Dispute Processing,” in The Pound Conference: Perspectives on Justice in the Future A. Leo Levin and Russell Wheeler (1976), 65-72, 86.
- Carrie Menkel-Meadow, “Mothers and Fathers of Invention: The Intellectual Founders of ADR Lecture.” Ohio State Journal on Dispute Resolution 16, no. 1 (2000), 1–25.
- Richard Abel, The Politics of Informal Justice, Vol. 1 (1982), 1-13.
- Andrew B. Mamo, “Three Ways of Looking at Dispute Resolution,” Wake Forest Law Review 54 (2019), 1418-1425 (fragments on ADR’s neoliberal strand).
If you are new to ADR, skim:
- International Institute for Conflict Prevention & Resolution, “ADR Primer” https://www.cpradr.org/adr-primer (this is a summarized —and debatable— vocabulary list of the field).
- Carrie J. Menkel-Meadow, “Mediation, Arbitration, and Alternative Dispute Resolution (ADR).” In International Encyclopedia of the Social & Behavioral Sciences, 70–74. Elsevier, 2015.
Session 2 – Negotiation: From Integration to Value Creation and Self-governance
According to ADR scholar Amy Cohen, “What makes contemporary negotiation both important and intriguing is how it translated the economist’s ideas of utility maximization and individual exchange not into truths of human behaviour or ideas for the reform of legal rules but rather into skills, practices, and techniques.” In this session, we trace how negotiation shifted from a method to integrate groups and socialize wills to a method to “create value” and a govern people’s perception, emotion, and communication. For such purpose, we will make a close reading of the interest-based negotiation theory as developed by Roger Fisher, William Ury, and Bruce Patton in Getting to Yes (1981) and trace its origins back to the Progressive Era, where Mary Parker Follett envisioned the building blocks of negotiation theory, yet her political, epistemic, and methodological agenda differed from the one embraced by Fisher, Ury, Patton, and their followers in their interest-based negotiation theory model.
Assigned material:
- Mary Parker Follett, “Constructive Conflict,” in Dynamic Administration: The Collected Papers of Mary Parker Follett Henry Metcalf and Ludwig Urwick (New York: Harpers & Brothers Publishers, 1940), 30-49.
- Francois de Callieres, On the Manner of Negotiating with Princes: Classic Principles of Diplomacy and the Art of Negotiation (New York: Houghton Mifflin Company, 2000), 10-11 (the value of negotiation and the character of the negotiator) 24-25 (self-control), 28-29 (on interest).
- Roger Fisher, William Ury, and Bruce Patton, Getting to Yes: Negotiating Without Giving In (New York: Penguin Press, [1981], 2011), 10-15 (intro), 25-27 (conflict is an industry), 45-67 (conflict is in people’s heads: perception, emotion, and communication), 68-70 (Follett, positions, and interests), 76-78 (on interests as human needs), 100-105 (on mutual gain), 125 (on power).
- Amy J. Cohen “A Labor Theory of Negotiation: From Integration to Value Creation,” Journal of Law and Political Economy 1 (1) (2020), 161-168.
We will watch during this session a fragment of the following documentary:
- A Call for Peace directed by Juan Carlos Borrero (2020) available on Amazon. This film describes some of the roles William Ury, a co-author of Getting to Yes, had in the Colombian Peace Negotiations between the government and FARC guerrilla.
Session 3 – Mediation: The four trajectories of mediation
Mediation is a multi-faceted process typically involving a neutral and independent third-party who facilitates negotiations between parties to reach an agreement. The traditional mediation style is facilitative mediation, developed as an extension of interest-based negotiation, in the 1980s. However, mediation has a long history and was inseparable from conciliation and arbitration in the early twentieth century.
Since the 1980s, in addition to the facilitative mediation models, three alternative mediation models with divergent historical origins, intellectual influences, and political agendas have been established: evaluative, transformative, and narrative mediation.
In this session, we will delve into these styles of mediation to trace their development and political visions. We will analyze where these models are located in the ideological spectrum, ranging from personal growth to social transformation to the delivery of individual dispute resolution services that are too small, inexpensive, or marginal for the legal system.
Assigned material:
- Lon Fuller, “Mediation--Its Forms and Functions,” Southern California Law Review 44, (1971), 305-39, just read: 305-312.
- Michal Alberstein, “The Jurisprudence of Mediation: Between Formalism, Feminism and Identity Conversations,” Cardozo Journal of Conflict Resolution 11 no. 1 (2009), 1-28.
- Christine B. Harrington and Sally Engle Merry, “Ideological Production: The Making of Community Mediation,” Law & Society Review 22, no. 4 (1988): 709-736.
Optional material
- Podcast: Negotiate Anything, “The History and Importance of Mediation with Grande Lum.” Link.
Session 4 –Restorative Justice: From seeing conflicts as property to scaling down the welfare state.
Restorative justice (RJ) represents an effort to reconsider the nature and purpose of addressing wrongful acts. Rather than a singular approach to dispute resolution, RJ encompasses a variety of practices and techniques, including apologies, forgiveness, truth commissions, healing circles, and restitution, among others. As some scholars argue, RJ seeks to repair, restore, reconcile, and reintegrate. The origins of RJ were centered around questions of power, control, and ownership over crime, wrongdoing, punishment, restitution, reconciliation, and community interests. As restorative justice evolved, these questions shifted towards structuring processes that empower all parties affected by wrongdoing to decide how to address incidents and heal the community collectively. Progressive restorativists embrace RJ for its aim of reducing state involvement, de-professionalization, and returning conflicts to those involved. Conversely, critical restorativists are skeptical of RJ because they view the push for reduced state intervention and individual ownership of conflicts as aligning with a neoliberal dismantling of the welfare state.
In this session, we will explore the origins of restorative justice in criminology, its applications, and the underlying political agenda. This includes questions such as who defines justice and who has a stake in addressing harm (e.g., victims, communities, offenders, and broader society). We will also examine the evolving political agendas of both proponents and critics of restorative justice. Initially centered around questions of power and control over conflicts, restorative justice has developed into a process aimed at healing communities and reducing state intervention in these matters.
In the second part of the session, we will discuss whether art can be a tool for restorative justice and to repair interpersonal relations and mend the social fabric in the aftermath of civil war. Particularly, we will explore the Colombian case and the art intervention, Fragmentos, from Colombian artist Doris Salcedo.
This session will be co-taught by Amy J. Cohen and the workshop’s instructor.
Assigned material:
- Amy J. Cohen, “Moral Restorative Justice: A Political Genealogy of Activism and Neoliberalism in the United States,” Minnesota Law Review 104 (2) (December 2019): 889-954, read only the following pages: 889-899, 903-925, 930-941, 946-953.
- Nils Christie, “Conflict as Property” The British Journal of Criminology 17, (1) (1977), 7-14. (This is one of the canonical pieces of restorative justice. It champions the idea that conflicts are property and are sometimes taken away from victims and conflicting parties).
- María del Rosario Acosta López, “Rendering the Unheard-of Believable: On Fragmentos by Doris Salcedo and Duelos by Clemencia Echeverri.” In Histories of Perplexity, (Routledge, 2024), 398–418.
Session 5 – Investment Arbitration, Democracy, and Global Governance
In this session, we will examine investment arbitration as a form of ADR applied to global governance. While the literature on investment arbitration is extensive in international law and globalization scholarship, it has not been adequately addressed in the ADR scholarship. Here, we will discuss how ADR can be utilized as a tool for global governance and for securing market transactions and foreign investments while safeguarding the market from democratic processes. Our discussion will trace how and why legal elites and other market defenders allegedly designed and implemented investment arbitration to shield foreign investments from the people’s will and democratic processes within sovereign states. We will also explore how this dispute system affects the decision-making capacities of states to implement socio-economic reforms.
Note: This session will feature an invited guest scholar and practitioner specializing in investment arbitration. They will share their views on investment arbitration's internal and external critiques and its future.
Assigned material:
- Quinn Slobodian, Globalists: The End of Empire and the Birth of Neoliberalism (Cambridge, MA: Harvard University Press, 2018), 135-145 (on the Capitalist Magna Carta and investment protection).
- Katharina Pistor, Code of Capital (New Jersey: Princeton University Press, 2019), 152-157 (coding the dispute resolution fora).
- Chester Brown and Kate Miles, Evolution in Investment Treaty Law and Arbitration (Cambridge: Cambridge University Press, 2011), 3-16.
- “Investment Code for World Urged; German Banker Proposes International Convention to Protect Capital Asks Arbitration Panel Want Development Role,” New York Times (Oct. 16, 1957) available here.
Session 6 –Scaling Up ADR: Dispute System Design and Other Systemic Methods
In this session, we will delve into initiatives that aim to expand the methodologies and mechanisms of ADR to organizations and societies on a larger scale. Specifically, we will explore the origins of Dispute System Design (DSD), a subfield within Alternative Dispute Resolution (ADR) that emerged in the late 1980s in industrial relations and has gained recognition as a distinct field in the past decade. DSD involves employing techniques and principles of interest-based negotiation to identify, prevent, manage, and resolve a flow of conflicts within organizations and societies. We will analyze how DSD operates, its underlying conceptions of organizations, and the political and economic values it promotes.
Assigned material:
- Lisa Blomgren Amsler, Janet K. Martinez, and Stephanie E. Smith, Dispute System Design: Preventing, Managing, and Resolving Conflict. (Stanford, California: Stanford University Press, 2020), 7-8, 10-20, 24-25 (for the analytical framework), feel free to read more of Chapter 2 if you want more detail on the framework, but we will not focus on it and each of its components.
- Amy J. Cohen, “Dispute Systems Design, Neoliberalism, and the Problem of Scale,” Harvard Negotiation Law Review 14 (51) (2009) (for a critical approach to DSD).
- Michal Alberstein, “ADR and Transitional Justice as Reconstructing the Rule of Law,” Journal of Dispute Resolution 2011, no. 1 (2011): 127-144 (for a contrast between transition justice and ADR).
Session 7 – The Death or Resuscitation of ADR? The New Doors in ADR’s Multi-Door House
In this session, we will explore the future of ADR by asking some critical questions: Is ADR death? Will the field transform itself? If so, what direction will it take? ADR is at a crossroads or paradigm shift moment. According to some scholars, virtual technology, the internet, and AI will replace traditional ADR methods, transforming them into online dispute resolution (ODR). This perspective views ADR merging into ODR, which I will call “ADR as ODR.”
Other scholars believe that the future of ADR lies in the realm communication across differences. They see potential for ADR to address political polarization, moral dogmatism, and facilitate constructive dialogues. They suggest that ADR should focus on improving how we engage in difficult conversations and how we handle disagreements. Which I will term “ADR as communicational ethics.”
Lastly, some critical scholars question whether ADR is becoming obsolete because it sidelines issues of power, structural problems, and distributive questions by foregrounding a value-creation, neutral, and individualized model. They argue that the field’s decline should resuscitate the 1970s tradition of informal justice as conceptualized in the Amherst Seminar, giving rise to an approach to ADR of more than a collection of methods to manage, resolve, and prevent conflict but as an analytical site to study power, groups dynamics, and conflicts. This is what I call “ADR as informal justice.”
Assigned material:
- Amy J. Cohen, “The Rise and Fall and Rise Again of Informal Justice and the Death of ADR,” Connecticut Law Review 54 (1) (2022), 199-222 (ADR as informal justice).
- Oladeji M. Tiamiyu, “The Impending Battle for the Soul of ODR: Evolving Technologies and Ethical Factors Influencing The Field,” Cardozo Journal of Conflict Resolution 23 (75), 75-86 (for the ADR as ODR view).
- Douglas Stone, Bruce Patton, and Sheila Heen, Difficult Conversations: How to Discuss What Matters Most (New York: Penguin Books, 2023), xxiii-xxiv, 1-16, 329-333 (ADR as communicational ethics).
- Robert C. Bordone, “Building Conflict Resilience: It’s Not Just About Problem-Solving” Journal of Dispute Resolution (2018), 65-73 (for ADR as communicational ethics from a consultancy perspective).
[1] In 2026, the following states and U.S. territories will adopt the NextGen Bar Exam: Connecticut, Guam, Maryland, Missouri, Oregon, and Washington. National Conference of Bar Examiners, “NextGen (July 2026),” (accessed April 28, 2024), link.
[2] For instance, in the academic year (2023-24), the courses offered at Harvard Law School on this topic were “The Negotiation Workshop,” “Mediation,” “Dispute System Design,” “Negotiating Across Worldviews,” “Processes of International Negotiation,” “Fugitive Negotiation,” “Money, Negotiation & You,” and “Transitional Justice: Dispute System Design and Durable Peace.” Based on my review of the syllabus, all of them are focused on the pragmatics or how to approach to these methods. They don’t attempt to explore the intellectual roots and political agendas that drive these methods.
Syllabus Byse 2024-2025 ADR Historical Roots, Philosophy and Political Agenda.docx
Course Summary:
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