Process pluralism

PROCESS        

PLURALISM

CRITICALLY DISCUSS THE POSSIBILITIES AND CHALLENGES FOR LEGALPRACTICE OFFERED BY PROCESS PLURALISM.

By

Vanesa Ibáñez Campos

Dispute Resolution Advocacy

INTRODUCTION

Nowadays, conflicts are not as simple as they were. Disputes can be multiple-party interests, with culture differences and complicated origins. In addition, there are often hidden motives and problems that arise along the process.^[1] At the same time, people is looking for shorter and less cost resolution.^[2]

In this context, dispute resolution is not the same as it was and litigation, where a court decide about the problem, is not the only option. Legal centralism has disappeared and a variety of process have arisen.^[3] Some dispute resolution experts have defined this development as “process pluralism” ^[4]

Among the following research, it will be analysed the principles of this process and its characteristic. Moreover, the research will study the possibilities and challenges faced by the judicial system and legal professionals within the legal practice. Through all the information collected, a final conclusion will be reached on the adequacy or not of the process of pluralism within the legal system.

PROCESS PLURALISM

Process Pluralism can be defined as different kinds of processes for different kinds of matters^[5]. It suggests that the different dispute settlement processes are likely to be associated with different conflicts.^[6] In conclusion, process pluralism refers to choosing different processes for solving and conflict resolution^[7]  and these resolution processes can be manipulated and adapted to achieve the best result^[8]

Offering different options to a decision-making, there is a universal acceptance of diverse processes^[9] range from arbitration, mediation, conciliation, negotiation to other less important ones.^[10]

It is this pluralism the origin of alternative dispute resolution ('ADR').^[11] 

Legal centralism denies the norms, principles, methods, etc. used in these alternatives process the name of "laws".^[12]  To this theory, only courts and tribunal are legitimated to take decision and prescribed rules. In this context, binding decisions are to be made according to legal standards rather than undirected considerations of fairness^[13]. Courts decides winner and loser based on law. Therefore, the parties agree that the dispute will be resolved by one party at the expense of the other party.^[14]

Thought this centralist philosophy is still legitimate and valid, process pluralism challenged its supremacy in the legal system^[15] and put on the table the limits of that kind of theory. Process pluralism accentuates the inability of adjudication to resolve some social issues that appear in most of the conflicts^[16]

Each process is useful in different situations^[17], so depending on the characteristics of the case and personal needs of the parties, they will decide the alternative that best suits to them.^[18] To take that decision, they considerate different factors like the cost (monetary and emotional), goals, relationship between the parties, time it is going to take…^[19] 

This plurality in the choice of process also means a greater number of possible outcomes, especially since, contrary to what happens before a court, the different parties have greater control and power^[20], which usually results in a better satisfaction^[21] for the parties, as they have been able to focus on what really interests them and in the degree they have considered appropriate.^[22]

CRITIQUE

Despite all efforts to represent a complete and comprehensive theory of pluralism, there are still some uncertainties that need an answer.

 The first one deals with the difficulty to confirm what the objectives of each process are and to what magnitude they are relevant. In the same line, it is also necessary to discover which goals are significant and which ones are not as important^[23]. The second issue focuses on the effective classification and grouping of processes, asking whether all cases should be treated alike or as if they were dissimilar, and when should them be treated differently (in the event that this was the answer)?^[24]. It should be recognized that a variety of different conceptions exist about the purposes and suitability of each ADR process. ^[25]At this point, it should be questioned if there is a practical way of solving problems for different types of conflicts.^[26] In the reality, pluralism process is intuitively applied in legal practice.^[27] For instance, in the majority of the cases, lawyers recommend mediation due to its advantage of keeping relationships, however, there are other important factor that can affect the result, like the different power situation between the parties. It is easy to make the mistake of simplifying conflicts under the main factor that conditions it, without considering that the total of the rest of the facets can, as well, be significant.^[28]

On the other hand, another obstacle faced by the legal practice is how to evaluate the successfulness of ADR. It is not easy to determine common objectives and factors to evaluate it.^[29] There are several factors to be considered, it can be measured through a huge amount of criterias, which makes the issue troublesomely complex^[30]and, if it is taken in consideration that the same process (mediation, arbitration, negotiation…whatever) produces in each situation a different result, the evaluation is even more complicated.^[31]It is mainly due to the fact that disputes are not equally, but even applying similar disputes, like of the same type, results will diverge^[32]  It is relevant to consider the fact that all the above mentioned, is due to the importance initially given to the objectives, by different the legal practice that is carried in the evaluations. Legal practitioners varying between placing value on highly adversarial goals to more client orientated.^[33]

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