Document Type

Article

Publication Date

2004

Abstract

Adding to the impressive body of work that has made her a leading voice in the fields of both alternative dispute resolution and professional responsibility, Carrie Menkel-Meadow's Saltman Lecture connects the theoretical exploration currently occurring on two parallel tracks: (1) theories of justice that investigate the ideal of a deliberative democracy; and (2) theories of alternative dispute resolution arising from its reflective practice. As she notes, theorists on both tracks are grappling with similar questions about the processes or conditions that will best bring together parties with widely divergent viewpoints to engage in consensus-building dialogue around contested issues.

However, while the tracks are parallel and both move in the same direction, they rarely meet. Menkel-Meadow encourages the political theorists, whose abstract models for deliberative democracy have, in her view, fallen into unfortunate ruts of dualism and polarity, to learn from the reflective dispute resolution practitioners, who have experimented with a variety of processes for creative problem-solving with multiple parties, issues, modes of communication, and forms of decision. An integration of theoretical and practical wisdom can pave the way, she suggests, toward a new role for lawyers possessing both legal and process expertise, to serve as neutral facilitators of participatory consensus-building processes around complex and multi-faceted problems. The expertise that they gain in this role can make them architects, not only of process, but of social justice as well.

Normatively grounded visions are especially important in the field of alternative dispute resolution as it moves from the experimental and voluntary forums that Menkel-Meadow describes to increasingly becoming institutionalized in court proceedings.

While Menkel-Meadow focuses on what political theory can learn from the practice of alternative dispute resolution, this article explores the related question, latent in Menkel-Meadow's essay, of what alternative dispute resolution theorists need from a theory of justice. For the practice of alternative dispute resolution to provide lessons for political theories of deliberative democracy, the practice needs to be contextualized in a normative vision of justice that addresses the relationship between procedure and justice ideals. In other words, it cannot merely describe what happens in experimental consensus-building processes or other alternative dispute resolution settings, but must articulate what should ideally be occurring.

Publication Citation

5 Nev. L.J. 389 (2004/05).