Alternative dispute resolution and the United Church, theological and jurisprudential implications of collaborative decision-making

grantor: University of St. Michael's CollegeThere are two questions that underlie this thesis. The first asks why, in the last 25 or 30 years, there has been an enormous growth in Alternative Dispute Resolution in North American society. Not only the legal system has embraced mediation, arbitration, community circles, victim-offender reconciliation and related alternatives to litigation, but so too have school boards, business corporations, community groups and religious institutions. By looking at the experience within the United Church of Canada, which adopted ADR in 1997, some of the influences behind and implications of this shift are identified. These considerations are then revisited and explored in a wider examination of the question by a review of the literature, which discusses though seldom directly, why ADR has arisen in the last quarter of the 20th century. The second question I address is this: How is it that people obey the law, or choose to act ethically? I identify a phenomenon I call “moral assensus,” which implies a moral “operating system” or grammar to which society collectively assents. Moral assensus is an alternative to “habits of obedience,” coercion or economic, cost/benefit models as a way to account for ethical and law abiding behaviour. Through metaphors drawn from management theory and science and through theological, philosophical and jurisprudential analysis I suggest how moral assensus contributes to our understanding of the role of law and ethics in the human project of living in community. The connection between the two questions comes in my suggestion that the rise of ADR is in large measure attributable to a dilution of the moral assensus by overly rational approaches to law and ethics. In our highly individualistic culture, the inter-subjectivity required for a healthy degree of moral assensus is lacking. ADR contributes to both the discernment and generation of moral assensus. The principles central to ADR when absorbed through the experience of conflict resolution have the potential to transform the way in which persons participate in public discussions of legal, ethical and political issues.Ph.D