Mediation, Arbitration, & Alternative Dispute Resolution (ADR)

Such comprehensive efforts are necessary to determineif a variable is truly intermediate in the causal sequencebetween two other variables.

See also: Causation (Theories and Models): Con-ceptions in the Social Sciences; Control Variable inResearch; Experimenter and Subject Artifacts: Meth-odology; Instrumental Variables in Statistics andEconometrics; Latent Structure and Casual Variables;Moderator Variable: Methodology; Systems Model-ing

Bibliography

Angrist J D, Imbens G W, Rubin D B 1996 Identification ofcausal effects using instrumental variables. Journal of theAmerican Statistical Association 91: 444–55

Baron R M, Kenny D A 1986 The moderator–mediator dis-tinction in social psychological research: Conceptual, stra-tegic, and statistical considerations. Journal of Personality andSocial Psychology 51: 1173–82

Bollen K A 1987 Total direct and indirect effects in structuralequation models. In: Clogg C C (ed.) Sociological Meth-odology. American Sociological Association, Washington,DC, pp. 37–69

Clogg C C, Petkova E, Shihadeh E S 1992 Statistical methodsfor analyzing collapsibility in regression models. Journal ofEducational Statistics 17: 51–74

Cook T D, Campbell D T 1979 Quasi-Experimentation: Design& Analysis Issues for Field Settings. Rand McNally CollegePub. Co., Chicago

Cook T D, Cooper H, Cordray D S, Hartmann H, Hedges L V,Light R J, Louis T A, Mosteller F 1992 Meta-Analysis forExplanation: A Casebook. Russell Sage, New York

Cronbach L J 1982 Designing E�aluations of Educational andSocial Programs, 1st edn. Jossey-Bass, San Francisco

Duncan O D 1966 Path analysis: sociological examples. Amer-ican Journal of Sociology 72: 1–16

Holland P W 1988 Causal inference, path analysis, and recursivestructural equations models. In: Clogg C C (ed.) SociologicalMethodology. American Sociological Association, Washing-ton, DC, pp. 449–93

Hull C L 1943Principles of Beha�ior. D.Appleton-Century,NewYork

MacCorquodale K, Meehl P E 1948 Operational validity ofintervening constructs. Psychological Re�iew 55: 95–107

MacKinnon D P, Dwyer J H 1993 Estimating mediatedeffects in prevention studies. E�aluation Re�iew 17: 144–58

Rubin D B 1974 Estimating causal effects of treatments inrandomized and nonrandomized studies. Journal of Edu-cational Psychology 66: 688–701

Robins J M, Greenland S 1992 Identifiability and exchange-ability for direct and indirect effects. Epidemiology 3: 143–55

Schatzkin A, Freedman L S, Schiffman M H, Dawsey S M 1990Validation of intermediate endpoints in cancer research.Journal of the National Cancer Institute 82: 1746–52

Sobel M E 1982 Asymptotic confidence intervals for indirecteffects in structural equation models. In: Leinhardt S (ed.)Sociological Methodology. American Sociological Associa-tion, Washington, DC, pp. 290–312

Spirtes C, Glymour P, Scheines R 1993 Causation, Prediction,and Search. Springer-Verlag, New York

West S G, Aiken L S 1997 Toward understanding individualeffects in multicomponent prevention programs: design and

analysis strategies. In: Bryant K J, Windle M, West S G (eds.)The Science of Pre�ention: Methodological Ad�ances fromAlcohol and Substance Abuse Research. American Psycho-logical Association, Washington, DC

Wright S 1934 The method of path coefficients. Annals ofMathematical Statistics 5: 161–215

D. P. MacKinnon

Mediation, Arbitration, and Alternative

Dispute Resolution (ADR)

Mediation, arbitration and ADR (‘alternative’ disputeresolution) are processes used to resolve disputes,either within or outside of the formal legal system,without formal adjudication and decision by an officerof the state. The term ‘appropriate’ dispute resolutionis used to express the idea that different kinds ofdisputes may require different kinds of processes—there is no one legal or dispute resolution process thatserves for all kinds of human disputing. Mediation is aprocess in which a third party (usually neutral andunbiased) facilitates a negotiated consensual agree-ment among parties, without rendering a formaldecision. In arbitration, which is the most like formaladjudication, a third party or panel of arbitrators,most often chosen by the parties themselves, renders adecision, in terms less formal than a court, oftenwithout a written or reasoned opinion, and withoutformal rules of evidence being applied. As notedbelow, the full panoply of processes denominatedunder the rubric of ADR now includes a variety ofprimary and hybrid processes, with elements of dyadicnegotiation, facilitative, advisory and decisional ac-tion by a wide variety of third party neutrals, some-times combined with each other to create new formatsof dispute processing (see Negotiation and Bargaining:Role of Lawyers; International Arbitration; Litigation;Courts and Adjudication; Disputes, Social Constructionand Transformation of; Legal Systems: Pri�ate; LexMercatoria; Legal Pluralism; Lawyers; Judges; Para-lawyers: Other Legal Occupations).

1. Definitions and Types of Processes

In an era characterized by a wide variety of processesfor resolving disputes among individuals, organiza-tions, and nations, process pluralism has become thenorm in both formal disputing systems, like legalsystems and courts, and in more informal, privatesettings, as in private contracts and transactions,family disputes, and internal organizational grievancesystems. There are a number of factors that delimit thekinds of processes which parties may choose or may beordered to use under rules of law, court, or contract.

The ‘primary’ processes consist of individual action(self-help, avoidance), dyadic bargaining (negotia-

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Mediation, Arbitration, and Alternati�e Dispute Resolution (ADR)

tion), and third party facilitated approaches (media-tion), or third party decisional formats (arbitrationand adjudication). ‘Hybrid’ or ‘secondary’ processescombine elements of these processes and include med-arb (facilitated negotiation followed by decision),minitrials (shortened evidentiary proceedings followedby negotiation), summary jury�judge trials (use ofmock jurors or judges to hear evidence and issue‘advisory’ verdicts to assist in negotiation, oftenconducted within the formal court system), and earlyneutral evaluation (third parties, usually lawyers orother experts, who hear arguments and evidence, and‘advise’ about the issues or values of the dispute, forpurposes of facilitating a settlement or structuring thedispute process). Increasing judicial involvement indispute settlement suggests that judicial, and oftenmandatory, settlement conferences are another formof hybrid dispute mechanism. Retired judges provide ahybrid form of arbitration or adjudication in private‘rent-a-judge’ schemes that are sometimes authorizedby the state.

Dispute processes are also characterized by theextent to which they are voluntary and consensual(whether in predispute contract agreements, ADR exante, or voluntarily undertaken after the disputeripens, ADR ex post), or whether they are mandated(by a predispute contract commitment) or by courtrule or referral. The ideology that contributed to thefounding of modern mediation urges that mediationshould be entered into voluntarily and all agreementsshould be arrived at consensually (Menkel-Meadow1995a). Nevertheless, as courts have sought increas-ingly to ‘manage’ or reduce their caseloads, and havelooked to ADR processes as a means of diverting casesto other fora, even mediation may be ‘mandated,’although it is usually participation in, not substantiveagreement, that is required.

The taxonomy of different dispute processes alsodifferentiates between binding and non-binding pro-cesses. Arbitration, for example, can be structuredeither way. Under some contractual and statutoryschemes (such as the American Federal ArbitrationAct), decisions by private arbitrators are final andbinding on the parties, and subject to very limitedcourt review, including only such claims as fraud,corruption of the arbitrator, or, in a few jurisdictions,serious errors of law or extreme ‘miscarriages ofjustice.’ Nonbinding processes, including nonbindingdecisions in some arbitrations, allow appeals orfollow-through to other processes, such as mediationor full trial. Many court annexed arbitration pro-grams, for example, allow a de novo trial following anarbitration if one party seeks it, often having to post abond or deposit for costs. The process of mediationitself is non-binding, in that, as it is a consensualprocess, a party may exit at any time; on the otherhand, once an agreement in mediation is reached, abinding contract may be signed, which will be enforce-able in a court of law.

Finally, dispute processes are often subject todifferent requirements depending on whether they areused in private settings (by contract, in employment orother organizational settings) or in public arenas suchas courts. Court related or ‘court-annexed’ ADR pro-grams, now encompassing the full panoply of disputeprocesses, may be subject to greater legal regulation,including selection, training, and credentialing of thearbitrators or mediators, ethics, confidentiality, andconflicts of interest rules, as well as providing forgreater immunity from legal liability.

ADR processes are often differentiated from eachother also by the degree of control the third partyneutral has over both the process (the rules ofproceedings) and the substance (decision, advice, orfacilitation) and the formality of the proceeding(whether held in private or public setttings, with orwithout formal rules of evidence, informal separatemeetings, or ‘caucuses’ with the parties, and with orwithout participation of more than the principaldisputants). ADR processes are being applied in-creasingly to diverse kinds of conflicts, disputes, andtransactions, some requiring expertise in the subjectmatter (such as scientific and policy disputes) andspawning new hybrid processes such as ‘consensusbuilding’ which engage multiple parties in complex,multi-issue problem solving, drawing on negotiation,mediation and other nonadjudicative processes (Suss-kind et al. 1999).

Although there have been efforts to develop taxono-mies or predictive factors for assignment of particularcase types to particular processes (and some courtswhich assign or prohibit certain case types in somecategories of dispute resolution), for the most partthese efforts ‘to fit the forum to the fuss’ (Sander andGoldberg 1994) have been unsuccessful. Amenabilityof different cases to different processes just as oftendepends on the personalities of the disputants, parties,lawyers, and third party neutrals as on any particularcase type characteristic.

2. Theory and History of ADR

The modern growth of arbitration, mediation, andother ADR processes can be attributed to at least twodifferent animating concerns. On the one hand, schol-ars, practitioners, consumers, and advocates forjustice in the 1960s and 1970s noted the lack ofresponsiveness of the formal judicial system andsought better ‘quality’ processes and outcomes formembers of society seeking to resolve disputes witheach other, with the government, or with privateorganizations. This strand of concern with the qualityof dispute resolution processes sought deprofessionali-zation of judicial processes (a reduction of the lawyermonopoly over dispute representation), with greateraccess to more locally based institutions, such asneighborhood justice centers, which utilized com-

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munity members, as well as those with expertise inparticular problems, with the hope of generatinggreater party participation in dispute resolution proc-esses (Merry and Milner 1993). Others sought betteroutcomes than those commonly provided by theformal justice system, which tend toward the binary,polarized results of litigation in which one party isdeclared a loser, while the other is, at least nominally,a winner. More flexible and party controlled processeswere believed to deliver the possibility of morecreative, Pareto-optimal solutions which were gearedto joint outcomes, reduction of harm or waste to asmany parties as possible, improvement of long termrelationships, and greater responsiveness to the under-lying needs and interests of the parties, rather than tothe stylized arguments and ‘limited remedial imag-inations’ of courts and the formal justice system(Menkel-Meadow 1984, Fisher et al. 1991). Some legaland ADR processes (like arbitration) are rule based,but other forms of ADR (negotiation and mediation)are thought to provide individualized solutions toproblems, rather than generalized notions of ‘justice.’

A second strand of argument contributing to thedevelopment of ADR was, however, more quanti-tatively or efficiency based. Judicial officers, includingthose at the top of the American and English justicesystems, argued that the excessive cost and delay in thelitigation system required devices that would divertcases from court and reduce case backlog, as well asprovide other and more efficient ways of providingaccess to justice (Burger 1976, Woolf 1996). Thisefficiency based impetus behind ADR encouragedboth court-mandated programs like court-annexedarbitration for cases with lower economic stakes, andencouraged contractual requirements to arbitrate anyand all disputes arising from services and productsprovided in banking, health case, consumer, securities,educational, and communication based industries.

Modern ADR structures are related only loosely totheir historical antecedents. In many countries, ar-bitration had its origins in private commercial arbitra-tions, outside of the formal court structure, and usedprincipally by merchants when disputing with eachother (Dezalay and Garth 1996). In the United States,labor arbitration developed to secure ‘labor peace,’ aswell as to develop a specialized substantive ‘law of theshop floor’ (Fuller 1963).

Early use of mediation or conciliation occurred insome courts and communities seeking both to reducecaseloads and to provide more consensual agreementsin ethnically or religiously homogeneous areas (Auer-bach 1983). Indeed, mediation and other consensuallybased processes are thought to work best in regimeswhere there are shared values, whether based oncommon ethnicity, or communitarian or politicalvalues (Shapiro 1981). In Asian and other nations withmore communitarian and harmony based cultures (ascontrasted to more litigative or individualistic cul-tures), mediation is often the preferred form of dispute

resolution, but it too has been used for system orpolitical regime purposes beyond resolving the dis-putes of the parties (Lubman 1967). Thus, mostpolitical regimes have had to deal with both public andprivate forms of dispute resolution that often sup-plement, but sometimes challenge or compete with,each other.

The introduction or ‘revival’ of multiple forms ofdispute resolution (including mediation, arbitration,ombuds, and conciliation) within the legal systemprobably dates to the 1976 conference on the ‘Causesof Popular Dissatisfaction with the Administrationof Justice’ at which the idea of a ‘multidoor court-house’ was introduced in order to meet both thecaseload needs of the judicial system and the ‘qualityof justice’ needs of consumers in a rapidly growingarena of legally and culturally cognizable claims(Sander 1976). More deeply contextualized study ofthe social transformation of conflicts into legallycognizable claims by a community of sociolegalscholars (Felstiner et al. 1980–81), drawing on anthro-pological, sociological, political, and psychologicalinsights, also contributed to the theoretical, as well aspractical, significance of pluralism in disputing.

3. Applications

Each of the ADR processes have their own logic,purposes, and jurisprudential justifications. Mediationand conciliation are often used to improve communi-cations between parties, especially those with pre-existing relationships, to ‘reorient the parties to eachother’ (Fuller 1971) and to develop future orientedsolutions to broadly defined conflicts. Arbitration, onthe other hand, being more like adjudication (Fuller1963, 1978) is used more often to resolve definitively aconcrete dispute about an event which has transpiredand requires fact finding, interpretation of contractualterms, or application of legal principles.

These basic forms have been adapted to a number ofsubject areas and dispute sites. As regular use of theseformats of dispute resolution becomes more common,mediation seems to be overtaking arbitration as apreferred method of dispute resolution (because of theideology of party self-determination and the flexibilityof agreements). Arbitration, still most commonly usedin labor disputes, is now the method of choice in formcontracts signed by consumers, as well as merchants.Arbitration has, thus far, been the mode of choice forresolving international commercial, investment, andtrade disputes, such as in the World Trade Organiza-tion (WTO) and the General Agreement on Tariffsand Trade (GATT). Arbitration has also been de-ployed in new forms of disputes developing underboth domestic and international intellectual propertyregimes. Various forms of mediation and arbitrationare also being used increasingly to resolve trans-national disputes of various kinds (political, economic,natural resource allocation, and ethnic violence) and

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are employed by international organizations such asthe United Nations and the Organization of AmericanStates, as well as multinational trade and treaty groups(NAFTA, the European Union, and Mercosur) andnongovernmental organizations in human rights andother issue related disputes (Greenberg et al. 2000).

Beginning in the United States, but now in useinternationally, mass injury (class action) cases, bothinvolving personal and property damages, have beenallocated to ADR claims facilities, utilizing botharbitral and mediative forms of individual case proces-sing. In legal regimes all over theworld, family disputesare assigned increasingly to mediative processes, bothfor child custody, and support and maintenance issues.In many nations, this growth in family mediation hasspurred the development of a new profession ofmediators, drawn from social work or psychology,who sometimes compete with lawyers both in privatepractice and as court officers (Palmer and Roberts1998).

In many jurisdictions some form of referral to ADRis now required before a case may be tried. In-creasingly, however, parties to particularly complexdisputes, such as environmental, mass torts, or govern-mental budgeting, may convene their own ADRprocesses, with a third party neutral facilitating a newform of public participatory process which combinesnegotiation, fact-finding, mediation, and joint prob-lem solving. Such ‘consensus building’ processes havealso been applied to the administrative tribunal pro-cesses of both rule-making and administrative ad-judication in a new process called ‘reg-neg’ (negotiatedrule-making or regulation).

Although ADR has been considered, until quiterecently, principally anAmerican alternative to courts,the use of ADR is spreading slowly around the world,being used to relieve court congestion, provide ex-pertise in various subject matter disputes (e.g.,construction, labor matters, family law), build trans-national dispute systems for economic, human rights,and political issues, and to offer alternative justicesystems where there is distrust of existing judicialinstitutions. The use of ADR across borders andcultures, raises complex questions about inter-cultural negotiations (Salacuse 1998) and multijuris-dictional sources of law or other principles for disputeresolution.

4. Contro�ersies

The use ofmediation, arbitration, andADR processes,in lieu of more traditional adjudication, has not beenwithout its controversies, reviewed briefly in thissection.

4.1 Pri�atization of Jurisprudence

With the increased use of negotiated settlements,mediation, and private arbitration, there has been

concern that fewer and fewer cases will be available inthe public arena for the making of precedent (Fiss1984), and debate about and creation of rules andpolitical values for the larger community (Luban1995). As settlements are conducted in private andoften have confidentiality or secrecy clauses attachedto them, others will not learn about wrongs committedby defendants, and information which might other-wise be discoverable will be shielded from public view.Settlements may be based on non-legal criteria, threat-ening compliance with and enforcement of law. Claimsare more likely to be individualized than collectivized.

Whether there is more privatization or secrecy in thesettlement of legal disputes than at some previoustime remains itself a subject of controversy as empiricalstudies document relatively stable rates of non-judicialcase terminations (at over 90 percent in many jurisdic-tions and across all types of disputes) (Kritzer 1991).

Related concerns about the privatization of thejudicial system include increased indirect state in-tervention in the affairs of the citizenry through moredisputing institutions, at the same time that the exit ofwealthier litigants gives them less stake in the qualityand financing of public justice systems (Abel 1982).The debate centers on whether dispute resolutionsystems can serve simultaneously the private interestsof disputants before them and the polity’s need for thearticulation of publicly enforced norms and values(Menkel-Meadow 1995b).

4.2 Inequalities of Bargaining Power

A number of critics have suggested that less powerfulmembers of society, particularly those subordinatedby race, ethnicity, class, or gender, will be disadvan-taged disproportionately in ADR processes wherethere are no judges, formal rules or, in some cases,legal representatives to protect the parties and advisethem of their legal entitlements (Delgado et al. 1985,Grillo 1990–91). Responses from ADR theorists sug-gest that there is little empirical evidence that lessadvantaged individuals or groups necessarily farebetter in the formal justice system, and that soph-isticated mediators and arbitrators are indeed sensitiveto power imbalances and can be trained to ‘correct’ forthem without endangering their ‘neutrality’ in theADR process. Many private ADR organizations havebegun developing standards for good practices andDue Process protocols to protect the parties andensure the integrity of the process.

4.3 E�aluation and Empirical Verification ofEffecti�eness

There are few robust research findings with respect tothe effectiveness of ADR in meeting its claimedadvantages. Recent findings from studies of ADR inthe American federal courts have been contradictoryabout whether or not arbitration, mediation, and

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some forms of early neutral evaluation do decreasecase processing time or costs, either for the parties orthe system. Preliminary studies from England dem-onstrate low usage of mediation schemes (Genn 1999).Yet studies continue to demonstrate high satisfactionrates among users of arbitration and mediation prog-rams (MacCoun et al. 1992), and higher compliancerates with mediated outcomes than traditional adju-dication (McEwen and Maiman 1986). In light of thevariation in ADR programs, it is too early for there tobe sufficient data bases for accurate comparisonsbetween processes.

4.4 Distortions and Deformations of ADR Processes

Within the nascent ADR profession there is concernthat the early animating ideologies of ADR are beingdistorted by their assimilation into the conventionaljustice system. Within a movement that sought todeprofessionalize conflict resolution there are nowcompeting professional claims for control of stan-dards, ethics, credentialing, and quality controlbetween lawyers and nonlawyers. Processes like medi-ation that were conceived as voluntary and consensualare now being mandated by court rules and contracts.Processes that were supposed to be creative, flex-ible and facilitative are becoming more rigid, ruleand law based, and judicialized as more common lawis created by courts about ADR, and more laws arepassed by legislatures. The overall concern is thata set of processes developed to be ‘alternative’ to thetraditional judicial system are themselves being co-opted within the traditional judicial process with itsoverwhelming adversary culture. Policy makers andpractitioners in the field are concerned about whethera private market in ADR is good for ‘disciplining’ andcompeting with the public justice system or whether,on the other hand, there will be insufficient account-ability within a private market of dispute resolution.

5. The Future of ADR

There is no question that the use of a variety ofdifferent processes to resolve individual, organiza-tional, and international problems is continuing toexpand. New hybrid forms of ADR (as in mediationon the Internet) are developing to help resolve newproblems, with greater participation by more parties.Large organizations are creating their own internaldispute resolution systems. There are clear trends infavor of mediation and arbitration in the internationalarena, where globalization of enterprises and govern-mental interests require creative and simple processesthat are not overly attached to any one jurisdiction’ssubstantive law, to promote goals of efficiency, fair-ness, clarity, and legitimacy, particularly in regimeswith underdeveloped formal legal systems. It is alsoclear that there is competition over who will controlsuch processes, and which processes will dominate in

which spheres of human disputing and deal-making.The likely result is that the creative pluralism andflexibility of ADR will be subject increasingly to itsown forms of formality and regulation in an effort tokeep its promises of efficiency, participation, betterquality outcomes, and justice.

See also: Conflict and Conflict Resolution, SocialPsychology of; Conflict: Anthropological Aspects;Conflict Sociology; Dispute Resolution in Economics;International Arbitration; Lex Mercatoria; Parties:Litigants and Claimants

Bibliography

Abel R 1982 The contradictions of informal justice. In: Abel R(ed.) The Politics of Informal Justice: The American Ex-perience. Academic Press, New York

Auerbach J1983JusticewithoutLaw?Resol�ingDisputesWithoutLawyers. Oxford University Press, New York

Burger W 1976 Agenda for 2000 AD—need for systematicanticipation. Federal Rules Decisions 70: 92–4

Delgado R et al. 1985 Fairness and formality: Minimizing therisk of prejudice in alternative dispute resolution. WisconsinLaw Re�iew 1985: 1359–404

Dezalay Y, Garth B 1996 Dealing in Virtue: InternationalCommercial Arbitration and the Construction of a Trans-national Legal Order. University of Chicago Press, Chicago

Felstiner W, Abel R, Sarat A 1980–81 The emergence andtransformation of disputes: Naming, blaming and claiming.Law & Society Re�iew 15: 631–54

Fisher R, Ury W, Patton B 1991 Getting to Yes: NegotiatingAgreement Without Gi�ing In, 2nd edn. Viking Penguin, NewYork

Fiss O 1984 Against settlement. Yale Law Journal 93: 1073–90Fuller L 1963Collective bargaining and the arbitrator.Wisconsin

Law Re�iew 18: 3–47Fuller L 1971 Mediation: Its form and functions. Southern

California Law Re�iew 44: 305–39Fuller L 1978 The forms and limits of adjudication. Har�ard

Law Re�iew 92: 353–409Genn H 1999 The Central London County Court Pilot Mediation

Scheme: Final Report. Lord Chancellor’s Department,London

Greenberg M C, Barton J, McGuinness M E 2000 Words O�erWar: Mediation and Arbitration to Pre�ent Deadly Conflict.Rowman & Littlefield, Lanham, MD

Grillo T 1990–91 The mediation alternative: Process dangers forwomen. Yale Law Journal 100: 1545–610

Kritzer H 1991 Let’s Make A Deal: Understanding the Nego-tiation Process in Ordinary Litigation. University of WisconsinPress, Madison, WI

Luban D 1995 Settlements and the erosion of the public realm.Georgetown Law Journal 83: 2619–62

Lubman S 1967 Mao and mediation: Politics and disputeresolution in communist China. California Law Re�iew 55:1284–359

MacCoun R, Lind E A, Tyler T 1992 Alternative disputeresolution in trial and appellate courts. In: Kagehiro D K,Laufer W S (eds.) Handbook of Psychology and Law. Springer-Verlag, New York

McEwen C A, Maiman R J 1986 The relative significance ofdisputing forum and dispute characteristics for outcome andcompliance. Law & Society Re�iew 20: 439–47

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Menkel-Meadow C 1984 Toward another view of legal nego-tiation: The structure of problem solving. UCLA Law Re�iew31: 754–842

Menkel-Meadow C 1995a The many ways of mediation: Thetransformation of traditions, ideologies, paradigms and prac-tices. Negotiation Journal 11(3): 217–42

Menkel-Meadow C 1995b Whose dispute is it anyway? Aphilosophical and democratic defense of settlement (in somecases). Georgetown Law Journal 83: 2663–96

Menkel-Meadow C 1997 When dispute resolution begets dis-putes of its own: Conflicts among dispute professionals.UCLA Law Re�iew 44: 1871–933

Merry S, Milner N 1993 The Possibility of Popular Justice: ACase Study of American Community Justice. University ofMichigan Press, Ann Arbor, MI

Palmer M, Roberts S 1998 Dispute Processes: ADR and thePrimary Forms of Decision Making. Butterworth, London

Salacuse J 1998 Ten ways that culture affects negotiating style:Some survey results. Negotiation Journal 14(3): 221–40

Sander F 1976 Varieties of dispute processing. Federal RulesDecisions 70: 111–34

Sander F, Goldberg S 1994 Fitting the forum to the fuss: A userfriendly guide to selecting an ADR procedure. NegotiationJournal 10: 49–68

Shapiro M 1981 Courts: A Comparati�e and Political Analysis.University of Chicago Press, Chicago

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C. Menkel-Meadow

Medical Experiments: Ethical Aspects

Experimental methods are of great importance insocial and natural science. This article describes thenature of experiment, the ethical nature of the experi-menter–subject relationship, the rights and interestsapproach to subject protection, the social impact ofexperimental methods, and the social control ofexperiment.

1. The Nature of Experiment

While a precise definition of an experiment is hard togive, for present purposes we can identify the keyelements as (a) a definite state of affairs for investi-gation (the experimental object); (b) a second definitestate of affairs, similar in all relevant respects to theexperimental object (the control object); (c) deliberateand controlled modification of the experimental ob-ject; (d) observation of the experimental object, theprocess of modification, the modified object and the

control; (e) systematic comparison of the modifiedobject and the control. ‘Object’ or ‘state of affairs’ isdeliberately vague: experiments can be performed onphysical systems (for instance, atoms), biologicalsystems (organisms, populations or ecosystems), orsocial individuals or systems (people, social groups,economies). The experimental and control objects arenormally constructed through selection or statisticalsampling to represent a specified population or naturalor social kind.

1.1 The Ethical Orientation of ExperimentalMethods

The ethical issues in experiments arise out of thevarious operations performed to constitute, observe,modify and compare the experimental object and thecontrol. These issues fall into three main groups: theinterests of the experimental object and control; thecharacter, motivation and behavior of the experi-menters; and the impact the experiment has on currentand future social interests. In addition, considerationmust be given to the ethical issues of scientific researchgenerally: including sound methodology, accurate andopen publication, and fair dealing with the public.

1.2 Experimental Objects, Subjects and Participants

Confusingly, in the literature what is called here the‘experimental object and control’ are usually referredto as the subjects of the experiment. There is a wholehistory of philosophy leading up to this terminology.Here it has been avoided, in order not to prejudice thequestion of what kinds of thing are the objects of theexperiment. For instance, plants would not normallybe thought of as ‘subjects,’ but people would be. Theterm ‘object’ is preferred here, to designate the ‘thing’on which the experimenter acts. Most experimentspresume or create a docile object which is malleable tothe experimenter’s will. The language of ‘subjects’ isilluminating too. The subject in an experiment is both‘subject to’ the experimenter in the political sense,albeit normally with the subject’s consent (again, thereis a political analogy). But in philosophy or linguistics,‘subject’ normally means the agent (the subject of asentence, the knowing subject), as distinct from theobject, which is acted upon.

These terminological issues are far from academic.Practically, there is a debate in medical research withpatients about whether it is better to call the ‘subjects’participants, in part because human-subject researchusually requires the cooperation of its subjects andtheir action in compliance with the requests of theresearcher, and in part because the ‘subject’ des-ignation is felt to be demeaning and oppressive.

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International Encyclopedia of the Social & Behavioral Sciences ISBN: 0-08-043076-7

Copyright � 2001 Elsevier Science Ltd.

All rights reserved.

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Mediation, Arbitration, & Alternative Dispute Resolution (ADR)