Courts did exist during the Colonial Era, but attornies at the time were more likely to act as “dealmakers and problem solvers” rather than court lawyers.

How compromise through deal making and problem solving became established as the preferred mode for dispute resolution can be seen in the negotiations leading up to the Declaration of Independence and at the Constitutional Convention. The delegates engaged in a dynamic decision-making process involving listening to all parties’ positions, engaged in caucusing and coalition building, found common ground, compromised, and built consensus. Most importantly, they shared a common attitude that agreement could and should be found.

In her 2016 acceptance speech at the Democratic National Convention, Hillary Clinton gave a colorful description of colonial era dispute resolution:

 “My friends, we’ve come to Philadelphia — the birthplace of our nation — because what happened in this city 240 years ago still has something to teach us today.

“We all know the story.

“But we usually focus on how it turned out — and not enough on how close that story came to never being written at all.

“When representatives from 13 unruly colonies met just down the road from here, some wanted to stick with the King.

“Some wanted to stick it to the king, and go their own way.

“The revolution hung in the balance.

“Then somehow they began listening to each other … compromising … finding common purpose.

“And by the time they left Philadelphia, they had begun to see themselves as one nation.”

 In the following decade the colonists again listened, negotiated and through compromising with shared commitment, agreed upon the constitution.  Subsequent U.S. history is one of compromise. Not all compromised agreements were perfect, such as those after the Civil War, but negotiating using compromise became one hallmark of our country that continues to reflect who we are as a nation.

For those who question our willingness to listen in this manner, I hope this example serves as reminder as to how we became a great democracy in the first place.

We know of mediation usage in early societies as well as the use of arbitration by Greek states and European merchants. However, less thought has been given to the historical events and trends that lead to the expansion of alternative dispute resolution in the United States, which can be identified by the following major factors:

One was the development of labor laws. Railroad worker strikes following the Civil War resulted in the creation of state arbitration boards and the first federal labor dispute law. In 1926, Congress passed the comprehensive Railway Labor Act, still in effect today, that provided for collective bargaining, mediation, voluntary arbitration, and fact-finding. That was followed by the Federal Mediation and Conciliation Service, the oldest continuing mediation institution in the United States. One of its first directors has said its early days were devoted to educating management and labor on how to use negotiation and mediation as they “did not know what they were doing or how to do it.”

Second was the growing criticism of the court system. Responding to those criticisms, Supreme Court Chief Justice Warren Burger convened a conference to discuss the inefficiencies of the justice system. The Chief Justice spoke in strong support of more use of alternative dispute resolution. Along with negotiation, arbitration, and mediation, other techniques included settlement conferences, mini-trials, summary jury trials and neutral evaluation. Supreme Court Justice Sandra Day O’Connor is often credited with the statement, “The courts of this country should not be the places where resolution of disputes begins. They should be the places where the disputes end after alternative methods of resolving disputes have been considered and tried.” 

The growth of applications for alternative dispute resolution continues and it’s reasonable to ask why. My contention is that we can find the answer in the growth of “rights”—a term itself difficult to define. John Stuart Mill’s definition serves our purpose: “When we call anything a person’s right, we mean that he has a valid claim on society to protect him in the possession of it, either by the force of law, or by that of education and opinion… To have a right, then, is, I conceive, to have something which society ought to defend me in the possession of.”

 Historically, of course, people do not have the same rights we do today. Nor do people in all societies have the same rights. In Europe, only the wealthy owned land and had rights derived from that status. In the colonial era, the basis of rights were land ownership, gender and race.

 Over time with changing values, other rights received recognition. The advance of worker’s rights, women’s rights, civil rights, GLBTQ rights, children’s rights and animal rights have been developed through conflict. The guarantee of those and other rights has been protected in courts, but it has been in various forms of alternative dispute resolution, particularly arbitration and mediation, that we seek redress of violations of our rights. In free and open democratic societies that limit the scope of courts, disputes over one’s rights now account for the growth of alternative dispute resolution and particularly the growth of mediation.