Critical Conflicts Between First-Wave and Feminist Critical Approaches to Alternative Dispute Resolution

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This paper examines the contradictory responses of critical legal theory to alternative dispute resolution (ADR) mechanisms. By tracking the changing character of the responses that response, the paper identifies significant developments over the last twenty-five years in the methodology and conclusions of critical legal scholarship.

The analysis finds that feminist critical approaches to ADR differ markedly from the first-wave (from the mid-1970s until the mid-1980s) critical accounts. They are not only more pragmatic than earlier critical theorists; feminist accounts advocate solutions that are in direct conflict with those of first-wave theorists. Where feminists embrace ADR, first-wave critical theorists express grave concern. Yet this divergence remains largely unacknowledged.

The paper argues that this discontinuity in critical scholarship serves to indicate just how successful and total the attack on formality, championed by first-wave scholars, was. Furthermore, the shift in critical scholarship may be explained by critical feminist scholarship’s adoption of the individual as its unit of analysis, while retaining the critiques of formality it had inherited from first-wave scholarship. The result is a more personalized conception of conflict, rights and remedies.