Lost in Translation: Can Exporting ADR Harm Rule of Law Development

Can alternative dispute resolution (ADR) harm the development of rule of law in other countries? Rule of law assistance programs seem to think not, as they increasingly include forms of ADR in rule of law development work around the globe. However, as these programs increase, there is also an increasing need for better analysis of when and where to support ADR programs as part of the rule of law development assistance package in individual countries. Fighting corruption is one reason ADR and rule of law practitioners give to explain why ADR should be included in rule of law programming. At the same time, ADR scholars and practitioners recognize that corruption within ADR is a possible problem in societies with already high rates of corruption. However, there has been less attention to whether introducing an ADR process could damage or contribute to delaying the development of rule of law in countries with already highly corrupt formal legal systems and with low levels of public trust in the legal system due, in part, to the damage that endemic corruption may have already done to public attitudes. In these countries, a new ADR process or program, such as plea bargaining in the Republic of Georgia, may be viewed as just another informal process operating outside the law, in the same way that corruption operates.The question explored in this article is whether ADR processes introduced to aid in the development of rule of law to help build legitimacy with legal authorities and institutions could instead work against legitimacy or further undermine it. This article will question whether establishing a new ADR program is advisable in a country with endemic corruption that is struggling to keep, or maintain, a moderately functional legal system. In these countries, the general public may view informal practices that occur in private and without standard rules to be another form of corruption and promoting such practices could reinforce already existing attitudes about the lack of rule of law.This article will begin, in Section II, with a brief explanation of rule of law development work. Section III will describe the role of legitimacy in developing rule of law. Section IV will discuss some examples of how ADR programs are typically included in rule of law development work. Section V will discuss when promotion of ADR programs may work against the development of rule of law, specifically when ADR might seem more like a new form of corruption or when it might reinforce already existing bad practices. Section VI will offer some questions for ADR and rule of law development practitioners to consider in deciding whether to introduce such programs to avoid harming or reinforcing already existing poor public attitudes regarding the legitimacy of the formal legal system. These questions include: whether the dispute is private in nature and without any larger public policy concerns; whether there are serious power imbalances between the parties; whether the public is likely to be interested in the case; whether the general public is likely to think the new process is another form of corruption; whether there is funding to establish the newly established process; and whether there will be adequate monitoring of the new ADR process if it is implemented.These are exactly the kinds of questions that policy-makers, ADR scholars, and ADR practitioners give great thought to when they design ADR programs in developed democracies. These questions continue to be asked even after a particular type of ADR is firmly entrenched, such as mandatory mediation, and even after ADR has become the norm, not the exception, in the legal system. However, it often seems that serious consideration of these issues is somehow left behind in the process of travelling abroad and implementing programs in developing countries. This article encourages ADR practitioners and rule of law assistance providers to not allow the complexities of ADR processes, as they understand them at home, to be lost in translation as ADR programs are introduced into rule of law development programs in other countries.