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5 Nevada Law Journal 389 (2004-2005)


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 consensus-building dialogue around contested issues.

While Menkel-Meadow focuses on what political theory can learn from the practice of alternative dispute resolution, I explore 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 process or other alternative dispute resolution settings, but must articulate what should ideally be occurring.

The author begins by briefly reviewing the relationship between justice and the adversary system on which our traditional legal system is based, in light of two types of critiques that have given impetus to the movement in favor of alternative dispute resolution procedures. I then make explicit three distinct normative conceptions that need to be articulated more fully, if consensus-building processes are to provide a viable alternative to adversary proceedings. Finally, I look at how some of the theories of deliberative democracy discussed by Menkel-Meadow can inform alternative dispute resolution theory in articulating these normative conceptions, as well as identifying some of the specific points at which theory needs to learn from practice.