Introduction:

Utilitarianism is an ethical theory that suggests actions should be evaluated based on their outcomes, specifically in maximising overall happiness or well-being. In Appropriate /Alternative Dispute Resolution (ADR), a utilitarian framework will help select processes and solutions that enhance collective welfare while minimising negative impacts on individuals. Understanding and applying Utilitarianism’s principles in Appropriate Dispute Resolution can lead to more effective and just outcomes that benefit the wider community.

Against the backdrop, Utilitarianism can significantly contribute to the effectiveness of Appropriate /Alternative Dispute Resolution (ADR) in several ways:

1. Focus on Outcomes: Utilitarianism emphasises the importance of achieving the greatest good for the greatest number. In the context of ADR, this perspective encourages parties to focus on outcomes that maximise overall satisfaction and minimise harm. By prioritising collective well-being, negotiators can work towards solutions that benefit all parties.

2. Pragmatic Approach:  Alternative Dispute Resolution (ADR) often involves collaborative problem-solving, aiming to find practical solutions rather than determining a winner or a loser. Utilitarian principles support this approach by promoting effective resolutions based on the consequences of actions. This encourages participants to consider how their decisions affect everyone involved. It is important to emphasise that one of the goals of utilitarianism is to increase happiness and overall well-being, similar to the focus on satisfying interests in mediation. However, the concept of happiness is often poorly defined (Interview with Ken Cloke). While both ADR and utilitarianism are pragmatic, it can be beneficial to view conflict as a source of unhappiness, primarily due to a sense of being “stuck.” Pragmatism, then, serves as a method for getting unstuck through small, practical steps that help alleviate feelings of powerlessness (Interview with Ken Cloke).

3. Increase in Compromise: A utilitarian framework encourages compromise and flexibility. When parties recognise that a resolution benefiting the collective can lead to mutual satisfaction, parties may be more willing to negotiate and adjust their positions, leading to a more amicable and swift resolution of disputes. However, the ADR legend- Kenneth Cloke, revealed that there is a step beyond compromise, which assumes a zero-sum game, which is collaboration (see the Thomas Kilman chart). He believes that conflict resolution can take us beyond simple versions of utilitarianism that focus on mutual sacrifice and search instead for mutual gain.

4. Long-term Relationships: By promoting solutions that are beneficial in the long run, Utilitarianism can foster better relationships among disputing parties. ADR focuses on promoting or maintaining a positive relationship, which can be crucial, especially in ongoing business or personal interactions. This focus on long-term consequences aligns with the utilitarian cardinal principle.

5. Efficiency: Utilitarianism encourages efficient use of resources in dispute resolution. Since ADR aims to resolve conflicts faster and with fewer resources than traditional legal systems, applying utilitarian principles can help streamline processes to achieve equitable and economically viable resolutions.

In conclusion, utilising the concept of Utilitarianism can significantly enhance ADR’s effectiveness by steering parties toward solutions that prioritise overall well-being. Promoting collaboration, encouraging compromises, and fostering long-lasting relationships creates a constructive environment for resolution while ensuring efficiency throughout the process.

REFERENCE

Interview with Kenneth Cloke on 1st December 2024.

Jeremy Bentham, (1823) An Introduction to the Principles of Morals and Legislation, Published by ECONLIB Books.

Resnik, Judith, Bring Back Bentham: ‘Open Courts,’ ‘Terror Trials,’ and Public Sphere(s) (November 17, 2010). Law & Ethics of Human Rights, Forthcoming, Yale Law School, Public Law Working Paper No. 221, Available at SSRN: https://ssrn.com/abstract=1710640 or http://dx.doi.org/10.2139/ssrn.1710640.

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