April 02, 2011

Consensual Dispute Resolution (CDR): A New Label for Facilitative Lawyering

In the past couple of years, the term Consensual Dispute Resolution has developed in the legal community as a way of differentiating certain legal services from Alternative Dispute Resolution legal services.  That is, CDR designates non-adversarial processes like facilitative mediation and Collaborative Practice, and ADR designates all other legal services that are outside of the public court system, like private judging, evaluative mediation, and arbitration (adversarial processes).

The alternative in ADR came to mean an alternative to a public courtroom, not an alternative basis for resolving disputes. Whereas, the consensual of CDR describes processes that use an entirely different basis for resolving disputes, a consensual one, meaning that all outcomes must be accepted by both “sides,” and that the law cannot be used to force people into settlement. Another way to say that is: “In CDR, the law does not control outcome.”

In the past I’ve been disconcerted talking to traditional lawyers who say they specialize in ADR and then say we do the same thing. I generally reply something to the tune of, “But I facilitate interested-based bargaining between clients in a consensual environment, how is that like your services of appearing in front of a private judge?” I find that many traditional lawyers aren’t aware that there is a movement in our legal culture to make the resolution of disputes more creative and tailored to clients’ individual situations in a way that traditional legal processes just can’t do.

So if you talk to a mediator or lawyer about their views and practices, ask them if they practice CDR or ADR, because while both are alternatives to the public court system, CDR skills are the non-adversarial lawyering that people are often looking for to help them resolve their family dispute.  An ADR minded lawyer might really just be an adversarial lawyer who is used to working in processes outside of the public court system, and think of a legal view of a dispute as being the only way to bring about resolution.

She kept things moving in a forward, positive motion until the end.

I am so grateful we chose Unmani to help us because both of us were able to move on, quickly, to new things without having the end of our dream dragging on unnecessarily. She kept things moving in a forward, positive motion until the end.  I can’t recommend her services more!

- Kate W.
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