Language: we change it, and it changes us. It's estimated that three new words are added to the English Language every day. And those already existing take on new meanings; your sick dog might be poorly, or (preferably) cool. With so many words now available, the ones we choose become loaded with meaning.
Let's look at three words close to my heart: Alternative Dispute Resolution. While the D and R part of ADR remain the same, is it now time to lose the A? Both the Civil Mediation Council and the Master of the Rolls, Sir Geoffrey Voss think so. Originally the A meaning was an "alternative to court", however the word alternative can now be understood as non-traditional, non-proven, non-mainstream or even wacky. These associated meanings are not helpful for a process that is actually proven, mainstream and effective. The A in ADR is therefore no longer fit for purpose.
And it would appear that the Courts agree. The 2022 Commercial Court Guide has introduced us to a new descriptor: Negotiated Dispute Resolution. NDR is specifically used in place of ADR.
Is all this just semantics? I don't think so. When people talk about disputes, they use strong words – rights and wrongs, breached obligations, harm done, damages. Litigation processes are formal and adversarial in nature; they are designed to maximise the chance of succeeding at a hearing sometime in the future. To move from that to an "alternative" process is uncomfortable. Disputants don't want a non-mainstream process; they want the court to decide who is right and wrong. They want vindication, not some soft side-line event. Negotiation, on the other hand, is a powerful word. Negotiation is not weak; negotiation puts the power to make the decision in the hands of the decision maker rather than the courts. Negotiation is taking control of and managing risk. Negotiation is managing one's own destiny. Mediation is all of these things. Mediation facilitates negotiated dispute resolution. Mediation is a powerful, transformational process.
Words can change the way we see things. Words can drive change. In a world where we are cautioned to choose our words carefully, I choose NDR.
Originally published 1 March, 2022
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