chapter  1
22 Pages

The theoretical foundations of collaborative law and alternative dispute resolution

ByConnie Healy

This chapter explores the concept of conflict and the extent to which it can be a positive rather than a negative force. Menkel-Meadow, in seeking to identify the theoretical frameworks from which the field of alternative dispute resolution or conflict resolution emanates, opines that the field of alternative dispute resolution (ADR) is richer for multiple sources of insights and sensitivity to the interactive effects of law and legal institutions with other social institutions. Conflict is a social construct. Thus, in examining its role, it is necessary to explore the societal factors that impact on its development and resolution. In adhering to a strict positivist interpretation of justice and the rule of law, there is, as noted by Douzinas, an antipathy towards non judicial methods of dispute resolution. As a new and developing dispute-resolution process, collaborative practice draws on a broad theoretical framework that emphasises the need for an understanding of the dynamics of conflict.