Perspectives on Legal Strategy through Alternative Dispute Resolution

Mary J. Shariff, University of Manitoba School of Law
Marlene Pomrenke, University of Manitoba
Vivian Hilder

Abstract

In this chapter, legal strategies are discussed in the context of Alternative Dispute Resolution (ADR), primarily from a Canadian perspective.

When ADR was established as an alternative to the traditional and often unsatisfactory dispute resolution regime, i.e. litigation, the element of choice was introduced causing ADR to be recognised by legal and business communities alike as a powerful tool in the formation of strategic resolutions to a client’s given dispute. Early strategies included the ability to avoid, manipulate or even block aspects of the traditional litigation process.

Recently, many ADR legal strategies have become more sophisticated and in turn, appear more elusive, as strategists become aware of the regulatory and public response to previously deployed strategies. Accordingly, by reference to specific examples, the authors present a novel typology of ADR legal strategies by classifying strategies on the basis of their increasing levels of sophistication, with particular emphasis on arbitration. This typology classifies strategies as they move from opportunities implicit in the ability to choose between legal processes (cataloguing; positioning; oppositioning) to opportunities illuminated by legislative or judicial response to other strategies once implemented (flipping) to the assumption of ADR culture into corporate practice to the exclusion of traditional legal players (appropriation).

The authors place ADR legal strategies into such a typology for the purposes of discussion and analysis. They conclude that strategy “captures the reality” of the ADR regime – that is, for many disputants it may not be as much about transforming conflict as it is about appropriating the process for its own objectives