Judges & ADR - The Move Toward Authenticity

Introduction
As part of my graduate studies I had the opportunity to participate in a World Bank sponsored project which involved teaching ADR to the judiciary in Albania. The project's objective was to strengthen the judiciary in Albania and thereby encourage much needed foreign investment in that struggling country. Prior to my involvement in that project, I had assumed that ADR was entirely separate from the world of legal rules and structures. However the Albanian judges were eager to learn both the theory and practice of alternate dispute resolution which gave me pause. Is it appropriate for a judge to become involved in ADR processes? Why is it that judges are interested in ADR?
The ADR movement is frequently seen as a response to the excesses of the civil litigation system: - the formality of the proceedings, the length of time it takes cases to get to trial, the excessive costs and the rancor and adversarial nature of proceedings. These factors persuade the discerning litigant to pursue "alternate" means of finding resolution to his conflict - one which is less formal, less expensive and voluntary.

From a public policy perspective, other factors fuel the movement towards ADR. ADR processes are frequently implemented as a procedural enhancement to justice [reduce delays, provide opportunities for expression] or to improve administrative efficiency [reduce case backlogs and the cost of government run court systems].

It is my thesis that neither of these factors - the unhappy litigant or the public need for efficient justice is the primary impetus to the phenomenon of ADR. Rather, the impetus to ADR lies within each individual who participates in the civil litigation system. This individual impetus takes the form of a search for meaning or a desire for the expression of self. This is the ethic of authenticity as articulated by moral philosophers, particularly the writings of Charles Taylor. This is the moral ideal of being true to oneself, of engaging in a life beyond form and appearance. It is this facet of human agency - our need for authentic expression - that operates as the driving force behind the ADR movement.

In order to place this thesis within existing ADR theory, it is necessary to present an analytical framework which conceptualizes theoretical models according to their underlying epistemological premises. Ken Wilber has developed a four quadrant model that elucidates the subjective\objective and individual\collective dichotomies. Truth claims are conceptualized differently depending on whether an objective or subjective stance is taken or whether a collective or individual stance is taken. Typically theoretical models are formulated from an objective\collective perspective. I will be presenting a model that emphasizes the subjective\individual perspective. The advantage of presenting the four quadrant model is that it supports a subjective\individual account of ADR and places such an account within an overall theoretical framework. This will be explained in greater detail in Part One of this paper.

Part Two will examine the nature of judging and adjudication. This is an exploration into what a judge does and how he does it - the decision making process, the concept of stare decisis, trial procedure, the delivery of reasons etc. This section will also canvass the intellectual climate of postmodernism within which the legal system operates. Key amongst these issues is the postmodern assumption that truth is relative - objective truth is no longer possible but is rather a function of history, culture and perception. This intellectual climate of relativism is affecting the judiciary - judges are waking up to the inherent subjectivity in their decisions.

Part Three will examine the moral ideal of authenticity. This naturally follows from the previous part as the subjective nature of self fulfilment is explored and defended. Professor Taylor's arguments for an ethic of authenticity will be presented and adopted.

Part Four addresses the phenomenon of ADR and how it conceptualizes conflict resolution in different ways. The movement from an emphasis on rights to an emphasis on interests represents a significant departure in our approach to conflict. The emphasis is placed upon process rather than outcome. In the context of our discussion, this allows a greater depth of meaning to be achieved as the motivating factors behind stated positions are revealed and explored. This occurs not only for the disputants but also for those persons engaged in the resolution of the conflict whether they be an adjudicator or mediator.

Part Five will reflect on the consequences of this evolution. Each of law and ADR can be seen as competing normative structures. The law, with its emphasis upon collective values and "objectivity"stands in opposition to ADR with its emphasis on subjective, individual resolution to conflict. The judge faces this dilemma squarely each time a case comes before him. The post modern tension between the inner subjective experience and the outer objective experience is revealed again. The debate regarding the advantages and disadvantages of ADR has focused almost exclusively on arguments of public policy which emphasize objective and collective values. This debate fails to recognize the value and importance of the individual need for personal meaning. Individual behaviour is motivated as much by the interior dimension as by external factors. By recognizing and appreciating this further dimension, a fuller understanding of the phenomena of Alternate Dispute Resolution can be gained.

Part One - A Four Quadrant Model
Ken Wilber has developed a four quadrant model which captures the four possible combinations between the individual-collective and subjective-objective poles. In the simplest of terms, the distinctions are found between inside and outside, collective and individual
This model was developed in order to provide an integral theory of "everything" - an overarching theory which could encompass the myriad theories about how and why the world exists as is does. Mr. Wilber discerned that knowledge claims may be categorized depending upon whether an interior (subjective) stance is taken or an exterior (objective) stance is taken and also whether an individual or collective stance is taken. The four quadrants are thus: individual\interior, collective\interior, individual\exterior and collective\exterior.
Mr. Wilber utilizes the following analogy to illustrate the interior\exterior distinction. A man lies on a bed in a hospital with dozens of probes and sensors attached to his head and body. The machines next to him tell us what his heart rate is, what his temperature is, what his brain activity is etc. These are all empirical measurements. They have an exterior claim to validity. However the machines cannot tell us how the man is feeling, whether he feels well or ill, happy or sad. To do that, we must ask him - we must enter his interior space. Both the machine readings and the man's answer are valid truth claims, each representing the same truth, but from different perspectives.

If we move from a consideration of the individual to a consideration of the collective, similar considerations apply. The interior\collective is interpretive, the exterior\collective is empirical. The interior\collective investigates culture or cultural meanings and attempts to get at those understandings from within to gain a sympathetic understanding. They are dialogical and interpretive- for example the philosophic enquiries of hermeneutics or the archetypes of Carl Jung. In contrast is the exterior\collective quadrant, represented by the empirical social sciences. This mode of enquiry wants to study the behaviour of society in a detached fashion.

The notion of an objective material world is a product of that period of Western intellectual history known as the Enlightenment. First articulated by Rene Descartes , reality was divided into a subjective inner experience and an objective outer world. Knowledge was gained by observation and deduction. Empiricism and rationalism became the accepted epistemology and the march of science began - all valid knowledge consisted of making maps (or theories or formulas etc) of the empirical world.
Mr. Wilber describes this development:

... the Enlightenment paradigm is known as the representation paradigm. This is the idea that you have the self or the subject, on the one hand, and the empirical or sensory world, on the other, and all valid knowledge consists of making maps of the empirical world, the single and 'pregiven' world. And if the map is accurate, if it correctly represents, or corresponds with, the empirical world, then that is 'truth'... The map could be an actual map, or a theory, or a hypothesis, or an idea, or a table, or a concept, or some sort of representation - in general some sort of map of the objective world.

The problem with the representation problem is that it fails to account for the imbedded interpretative lens of the "mapmaker". Mr. Wilber elaborates:

There are many ways to summarize the limitations of the representation paradigm, the idea that knowledge consists basically in making maps of the world. But the simplest way to state the problem with maps is they leave out the mapmaker. What was being utterly ignored was the fact that the mapmaker might itself bring something to the picture.... The mapmaker is not a little disembodied, ahistorical, self-contained monad, antiseptic and isolated and untouched by the world it maps. The self does not have an unchanging essence so much as it has a history, and the mapmaker will make quite different maps at the various stages of its own history, its own growth and development.
So in this developmental process, the subject will picture the world quite differently, based not so much on what is actually 'out there' in some pregiven world, but based in many ways on what the subject itself brings to the picture.

The problem therefore with strictly "objective" theory is that it results in a flat conception of the nature of reality, what Mr. Wilber describes as "flatland". It fails to integrate the interior dimensions which create depth and meaning. In order to have a proper and full understanding of phenomena, one must embrace both instrumental and non instrumental investigative approaches. Each of the four quadrants offers truth, albeit in a different way.

As mentioned above, Ken Wilber developed this model in order to provide a framework that encompassed the myriad theories that comprise classical, modern and post modern thought. The four quadrant model allows us to see that some theories find their basis in subjective meaning while others find their basis in objective investigation. However, even those who employ a subjective approach tend to collectivize their findings and conclusions. The assumption appears to be that theoretical validity is contingent upon the ability to articulate truth that will be applicable to a group that is larger than a single individual. This is an important point as it suggests that the interior\individual quadrant is never fully modeled by theory.

In a similar fashion, we can apply the four quadrant model to categorize the myriad facets of ADR theory - many theorists adopt a social scientist empirical approach to their work, while others adopt a more subjective approach. In reviewing the academic literature on the issue of the relationship between law and alternate dispute resolution, we find that the perspective adopted is almost exclusively taken from an objective\collective stance. Examples of this would include writings by Judith Resnick , Owen Fiss , and David Luban , each of whom have written on these issues. All of these writings are examples of theory in the objective\collective quadrant as collective practices and collective values are identified and analyzed.

I am suggesting that in order to really understand the phenomena of ADR, one must investigate and articulate the truths found in each of the four quadrants - anything less will fail to provide a full account of what is going on. There is a vast and growing literature on the nature of conflict and conflict resolution but it lacks a foundational or organizational structure. The four quadrant model allows us to categorize this research by its epistemological premise - are we dealing with subjective truth or objective truth, collective or individual values? More importantly, the four quadrant model allows recognition of and grants validity to the individual\subjective quadrant.
It may be said that ADR theory does in fact acknowledge, in a far greater way than traditional legal jurisprudence, the subjective nature of conflict. ADR processes, such as mediation, allow tailored and responsive solutions to the peculiarities of each conflict without necessarily requiring rulings or pronouncements that must consider the rights of others beyond those involved in the dispute. ADR permits and even mandates a consideration of the underlying interests, causes and values which may be at stake in a given dispute, either in an individual or collective form. This facet of ADR (its recognition of the subjective nature of conflict) will be explored in greater detail below. The point here is that the articulation of theory that describes this process, takes us into the objective\collective quadrant, an almost inescapable outcome inherent in the act of theorizing.

The following discussion on the nature of judging and the motivation towards ADR will also ultimately be a third quadrant discussion (collective\objective) of a first quadrant (interior\subjective) phenomena. In the final part, I will offer some observations on the integrative relationship between the four quadrants.

Part Two - The Nature of Judging & Adjudication
What is it that judges do? In simplest terms, they adjudicate cases in the following way:

a) the judge listens to the evidence and arguments presented by the parties;
b) he determines the facts of the case;
c) he considers the law, consisting of the relevant statutes and caselaw
d) he decides upon the outcome.

This is the classical account of the adjudicative system. It suggests that the law consists of a body of definite, logically related rules applied in a logical and impersonal fashion by impartial judges. The product of this process is "justice" - an unbiased application of normative rules upon the parties who come before the court.

In the context of Ken Wilber's four quadrant model, this can be seen as the application of third quadrant (collective\exterior) values upon first and second quadrant issues (individual - both interior and exterior). The law constitutes a representation of collective values - legislation is created through a political process. The doctrine of stare decisis requires the judge to consider the decisions of other courts. The proceedings are conducted in public, and are governed by procedural rules, which again are the expression of public values through the legislative process.

In light of these considerations, it may be said that there is a public interest (third quadrant - collective\exterior) component in everything a judge does. The judge is not free to conduct the hearing as he sees fit, nor is he free to impose any solution that he may consider desirable upon the parties. He is constrained by the legal system and is in fact, an integral part of that system. This is the notion of the "rule of law"- the idea that the law itself is a priori to all persons and even government itself. . The judge is bound by the law and is a servant of the law.
While the judge is bound by the law, he does enjoy a privileged position within it. Given that the judge may rule upon issues involving the state, it becomes essential that the judiciary be independent from government. The judiciary therefore enjoy a security of tenure that immunize them from extraneous pressures and governmental interference. Within his domain, the judge reigns with unfettered control. He presides over the courtroom and controls the pace of the proceedings. He decides when things will start and when they will finish. He rules on the admissibility of evidence and the propriety of questions. And it is the judge who ultimately renders the decision that determines the rights and obligations of the parties who come before him.

There is a vast literature on the nature of adjudication and it often acts as a cornerstone for legal theory. In order to articulate a theory of law, the practical aspect of case adjudication must be addressed. H. L.A. Hart , Ronald Dworkin , Len Fuller and many others have specifically addressed the mechanics of law formulation. These can be seen as third quadrant models of the philosophy of law - models which attempt to explain how law works. Often these theories stand in contradiction to one another, as for example, the competing theories of legal positivism and natural law.

For our purposes, the adoption or non-adoption of a legal theory, impacts upon how the judge perceives his role and how he performs his role. The judge performs his tasks within a personal philosophic framework He has a certain view of the world, of how things work. This personal map may be conscious or unconscious but it exists. Leonard Riskin coined the phrase, "the lawyer's standard philosophical map" to describe the working assumptions of most lawyers in dealing with conflict resolution. Judges also have such maps but they are constrained in ways that lawyers are not. They are, by definition, in an adjudicative and adversarial process. They do not have the luxury of changing outlooks or embracing settlement models in a full sense.

The question which arises, and the one which I would like to explore, is what happens when an individual moves beyond the horizons of the map he has been given? This is the issue confronting judges, both from the perspective of legal theory, and from the broader perspective of epistemology. I will deal with each of these in turn.

As noted above, traditional legal theory suggests that the law consists of a body of definite, logically related rules applied in a logical and impersonal fashion by impartial judges. Both critical legal studies scholars and feminist jurisprudence scholars have attacked these assumptions. Generally speaking, critical legal scholars claim that an objective or neutral analysis of legal concepts such as legal norms, legal duties and legal rights is impossible. Feminist legal scholars deny that categorical abstract theories derived through reason can serve as the foundation of knowledge. These movements argue that there is often a great difference between the formal language and apparatus of the law and the actual practical, or substantial, effect of the law. In support of this, reliance is placed upon sociological evidence, which demonstrates that class and gender differences due in fact impact significantly upon the way the law works in society.

A key component to the critical legal studies movement is its suggestion that legal reasoning is no different from other forms of political discourse. "Traditional legal theory" asserts that political questions are more controversial and less susceptible of final resolution than legal questions. This is supposedly because of the different methods by which political controversy and legal controversy are resolved. Legal reasoning is said to be "rational," "neutral," "apolitical," "objective," "restrained," and "bounded." This is in contrast to political discourse which is said to be "open-ended" and "free-wheeling" . The idea is that judges act in a political manner when they render decisions and legal theory is simply an artifice to disguise this fact.

The culmination of these attacks upon the formalism and rationalism of the law is the indeterminancy thesis. The indeterminacy thesis suggests that the materials of the law do not compel a judge to decide a case one particular way. No method of legal analysis is capable of generating a unique, correct solution to a particular legal question. This is an attack upon legal doctrine, not on the human nature of judges, as explained by Professor Fellas:

In asserting that law is indeterminate, the critics do not claim that judges ignore clear law and decide cases according to their own preferences. Rather, they claim that what the law requires is ambiguous. They assert not that judges take the law into their own hands, but that the law is so fluid that it slips through them. They insist that even if a judge were to approach his task in good faith, his decision could not be made by reference to the law because the law does not dictate the outcome of particular cases.

The critical legal movement attacks the very premises upon which traditional legal culture is based. Legal theory provides a foundation for the operation of law and legal principles - it requires its proponents to find, or at least to search for, determinate, objective, and neutral decision making procedures. Traditional theorists assert that these procedures ground the legal system on a foundation that is rational, objective, and apolitical, and that therefore transcends conflicts of individual interests or values. To claim that there is no such ground endangers the very foundation of the rule of law itself.

If we move beyond the narrow issue of legal theory and into the general intellectual climate of Western thought, similar considerations apply. In The Passion of the Western Mind, Richard Tarnass comments on the post modern intellectual climate:

Critical thought has encouraged a vigorous rejection of the entire Western intellectual "canon"as long defined and privileged by a more or less exclusively male, white European elite. Received truths concerning "man", "reason", "civilization" and "progress" are indicted as intellectually and morally bankrupt. Under the cloak of Western values, too many sins have been committed...

In this radically transformed cultural context, the contemporary academic world has increasingly concerned itself with the critical deconstruction of traditional assumptions through several overlapping modes of analysis - sociological and political, historical and psychological, linguistic and literary. Texts of every category are analyzed with an acute sensitivity to the rhetorical strategies and political functions they serve. The underlying intellectual ethos is one of disassembling established structures, deflating pretensions, exploding beliefs, unmasking appearances - a "hermeneutics of suspicion" in the spirit Marx, Nietzsche and Freud

Hand in hand with this attack on the intellectual foundations of Western thought is the notion that truth is culturally relative. This suggests that one's values and beliefs are determined by the social context of a given historical moment - individual reality is constructed through socialization. This is explained by Paul Kimmel:

You acquire a subjective culture through socialization by and with other human beings. In this process, what becomes your reality and common sense is selected from an array of alternatives in your social and physical environment. Your consciousness is built or constructed through your contacts with others who have already learned or incorporated certain alternatives from that environment. You perceive what you expect to perceive through selecting information that fits your learned categories.... As we are socialized, we learn to center our judgments around values and procedures fundamental to our common culture. Children learn that the values and procedures of their culture are natural and normal. They are what we call common sense. Children develop the cultural identity grounded in their in the community and family connections, including their religion, language, customs and traditions.

Upon this understanding, truth becomes subjective and relative. There is no empirical "fact" that is not theory laden with culturally embedded assumptions. No formal principles can be said to exist a priori. To quote Mr. Tarnass again, " in this understanding [the postmodern worldview], the world cannot be said to possess any features in principle prior to interpretation. The world does not exist as a thing in itself, independent of interpretation, Rather, it comes into being only in and through interpretation." This was Ken Wilber's point earlier - the interpretative lens of the mapmaker must be taken into account and therefore no maps can be said to contain absolute truth.
As noted above, this perspective directly assaults the imperialistic claims of the Western academy. The Western legal system is not the only way or even the best way to handle disputes, it is simply our cultural and political response to the problem of dispute resolution. Cultural theorists within the ADR movement have identified that adjudication is a cultural response which may be consciously modified.

Returning to the four quadrant model, we see that the intellectual climate of postmodernism involves a repositioning of emphasis among the four quadrants. There is a rising ascendancy of the first quadrant (subjectivity) and a corresponding decline of the third quadrant(objectivity) .

What does all of this mean to an individual judge? I would suggest that it may lead to the emergence of doubt, to a suspicion that perhaps the parameters of the law are not fixed and a priori. This doubt may emerge through a conscious intellectual awakening, as by reading critical legal theory and post modern critiques. Or it may arise subtly - gradually through the process of hearing cases and arguments over time. The judge may come to recognize that his finding of objective truth is really his subjective impression of what constitutes objective truth - coloured by his past life experience, both as a jurist and as an individual in society.

Below, I will argue that an awareness of the inherent subjectivity in adjudication, contributes to the movement towards alternate dispute resolution. However, given that it is the judge's view that "carries the day" in any given case, this in itself may be insufficient to motivate a judge in that direction. After all, he has the power to decide what happened (the facts), which legal principles are applicable and what the result will be. This power can be inherently satisfying and will operate as a disincentive to explore alternative methods of dispute resolution. In fact, it is the existence of this power which can operate to prevent the judge from recognizing the subjectivity of his actions. Such a judge lives within the traditional paradigm - using his power of instrumental reason to rationalize and determine the competing claims of the disputants before him.

For others, however, this post modern doubt can strike at the very heart of their role as judges. This is the judge who wishes to move beyond the rules and conventions dictated by the legal system. He is confined by tradition - from the robes worn by the judges and lawyers , to the rituals of the court opening, to the protocols of argument and decision writing. This is the judge who is constrained by his political and social isolation. His work, indeed his life, is governed by an adherence to structure, an acceptance of societal rules and norms and the maintenance of them.

However a judge comes to it, the result is the same - the world of objective forms and rules is no longer seen as inherently satisfying in itself.. The internal subjective dimension needs to find expression and recognition. It is the articulation of this dimension and the moral value inherent in it to which I now turn.

Part Three - The Moral Ideal of Authenticity
Charles Taylor is a Canadian philosopher, educated at Oxford, who is currently teaching and writing at McGill University. The focus on his work has been on the formation of the human identity. In The Sources of the Self - The Making of the Modern Identity, Professor Taylor begins as follows: "I want to explore various facets of what I will call the modern identity. To give a good first approximation of what this means would be to say that it involves tracing various strands of our modern notion of what it is to be a human agent, a person, or a self". As a moral philosopher, Professor Taylor concerns himself with the question of what it is good to be, rather than the question of what it is right to do. In his view, contemporary moral philosophy has concentrated itself on defining the content of obligation, rather than on the nature of the good life.

Professor Taylor postulates an ontology of the human - that we are imbued with morality in the same manner as we have a fear of falling or an affection for sweets. This morality extends beyond our obligations to others; it includes an examination of what kind of life is worth living; the self is included, as are the characteristics which will command and instill respect, what Professor Taylor terms " our dignity". Further, in order to make minimal sense of our lives, in order to have an identity, we need an orientation to the good.

In The Malaise of Modernity, Professor Taylor presents his thesis on the moral ethic of authenticity. He begins with the sources of authenticity and traces the historical origins of this idea through Locke, Rousseau and Herder:

... the starting point [is] in the eighteenth century notion that human beings are endowed with a moral sense, an intuitive feeling for what is right and wrong. The original point of this doctrine was to combat a rival view, that knowing right or wrong was a matter of calculating consequences, in particular those concerned with divine reward and punishment. The notion was that understanding right and wrong was not a matter of dry calculation, but was anchored in their feelings. Morality has, in a sense, a voice within.... Rousseau frequently presents the issue of morality as that of our following a voice of nature within us. This voice is most often drowned out by the passions, induced by our dependence on others, of which the key one is "amour propre" or pride ...

Rousseau also articulated a closely related idea in a most influential way. This is the notion of what I want to call self determining freedom. It is the idea that I am free when I decide for myself what concerns me, rather than being shaped by external influences. It is a standard of freedom that obviously goes beyond what has been called negative liberty, where I am free to do what I want without interference by others because that is compatible with my being shaped and influenced by society and its laws of conformity. Self determining freedom demands that I break the hold of all such external and positions, and decide for myself alone...

Herder put forward the idea that each of us has an original way of being human. Each person has his or her own measure is his way of putting it. This idea has entered very deep into modern consciousness. It is also new. Before the late 18th century, no one thought that the difference between human beings had this kind of moral significance. There is a certain way of being human that is my way. I'm called upon to live my life in this way, and not in imitation of anyone else's. But this gives a new importance to being true to myself. If I am not, I miss the point of my life. I miss what being human is for me.

Professor Taylor cautions us that by taking an instrumental stance towards ourselves, we may lose this connection with ourselves - we may fail to hear our "inner voice". This may have profound repercussions as the principle of originality, articulated by Herder, suggests that each person is unique - each of our inner voices has something to say. And further, this originality can only be discovered from within; it cannot be achieved by complying with the demands of external conformity. Professor Taylor continues:

Being true to myself means being true to my own originality, and that is something only I can articulate and discover. In articulating it, I am also defining myself. I am realizing a potentiality, that is properly my own. This is the background understanding to the modern ideal of authenticity, and to the goals of self-fulfillment or self-realization in which is usually couched. This is the background that gives moral force to the culture of authenticity, including its most degraded, absurd, or trivialized forms. It is what gives sense to the idea of "doing your own thing", or "finding your own fulfillment."

Authenticity also involves self discovery:
The notion that each one of us has an original way of being human entails that each of us has to discover what it is to be ourselves. But the discovery can't be made by consulting pre-existing models, by hypothesis. So it can be made only by articulating it afresh. We discover what we have in us to be. By becoming that mode of life, by giving expression in their speech and action to what is original in us.

Professor Taylor's challenge in The Malaise of Modernity was to defend this ethic of authenticity in the face of its debased and narcissistic forms prevalent in modern culture. While Taylor's arguments are both complex and subtle, it is useful to our purposes to sketch out the main themes he deals with and the arguments he raises in defence of the ideal of authenticity. We are concerned with these arguments because, as we will see, they echo Ken Wilber's four quadrant model and the integral relationship between all four quadrants. Further, as we will see in Part IV, the arguments raised by Taylor in support of authenticity (the dialogical nature of human interaction and the existence of "horizons of meaning") have direct application to the phenomena of alternate dispute resolution.

Professor Taylor addresses what he describes as "the slide to subjectivism" and the concomitant relativity that this entails. This problem may be described as that of moral relativism - the idea that everyone has, his or her own values, and about these it is impossible to argue. It is grounded in a form of individualism - everyone has the right to develop their own form of life and their own sense of what is really important or of value. What this consists of is up to the individual to decide -no one else can or should try to dictate its content. In confronting this issue, Professor Taylor is also addressing a common criticism against authenticity, that it fails to take into account the needs and rights of others. This is the "me generation" a societal problem of narcissism and blatant self interest. The adherents of this personal philosophy engage in a relativism that succeeds in destroying both the good and the bad in society by refusing to engage in hierarchy, by refusing to value and classify according to intrinsic worth. This is the "degraded" version of authenticity and one not worth defending. Instead, the "ideal" of authenticity needs to be retrieved. In Professor Taylor's words:

The picture I am offering is rather that of an ideal that has degraded, but that is very worthwhile in itself, and indeed, I would like to say, unrepudiable by moderns.... What we need is a work of retrieval, through which this ideal can help us restore our practice.

To go along with this,. You have to believe three things, all controversial: (1) that authenticity is a valid ideal; (2) that you can argue in reason about these ideals and about the conformity of practices to these ideals; and (3) that these arguments can make a difference.
Professor Taylor first suggests that for meaning to exist, it must be within a context - "things take on importance against a background of intelligibility". He calls this a "horizon". The first argument against relativism is to acknowledge the existence of these horizons.- if we are to define ourselves significantly, we cannot deny or suppress the horizons against which things take on significance for us. Thus authenticity involves not just self definition, but significant self definition; the definition of self is not made in a vacuum but rather against a background of context; the moral value of being authentic is found in the tension between self expression and the constraints of the external world; it is not just self expression by and in itself:

... the general lesson is that authenticity can't be defended in ways that collapse horizons of significance.. Even the sense that the significance of my life comes from its being chosen - the case where authenticity is actually grounded on self determining freedom - depends on the understanding that independent of my will, there is something noble, courageous, and hence significant in giving shape to my own life. There is a picture here of what human beings are like, placed between this option for self creation, and easier modes of copping out, going with the flow, conforming with the masses, and so on, which picture is seen as true, discovered, not decided. Horizons are given.

The second argument employed by Professor Taylor, is the fact that human agency is essentially dialogical. "We become full human agents, capable of understanding ourselves, and hence of defining an identity, through our acquisition of rich human languages of expression." This includes language, gestures and other non verbal forms of communication. A sense of identity is not discovered by the mind on its own but rather through dialogue with significant others, such as family members. Our definition of ourselves emanates, not from solitary reflection but through dialogue. This can result in a struggle, for example, with parents, who may wish to only recognize certain parts of our identities. Our parents may disappear from our lives, but our conversation with them will continue:

Consider what we mean by "identity". It is "who" we are, "where we're coming from." As such it is the background against which our tastes and desires and opinions and aspirations makes sense. If some of the things I value most are accessible to me only in relation to the person I love, then she becomes internal to my identity.

To some people this might seem a limitation, from which one might aspire to free oneself. This is one way of understanding the impulse behind the life of the hermit, or to take a case more familiar to our culture, the solitary artist. But from another perspective, we might even see this as aspiring to a certain kind of dialogicality. In the case of the hermit, the interlocutor is God. In the case of the solitary artist, the work itself is addressed to a future audience, perhaps still to be created by the work itself. The very form of a work of art shows its character as addressed. But however one feels about it, the making and sustaining of our identity, in the absence of a heroic effort to break out of ordinary existence, remains dialogical throughout our lives.

For Taylor, these two arguments, the dialogical nature of human agency and the existence of horizons of meaning, provide a reasoned argument against subjective relativism. Each in their own way, binds us to others for the creation of meaning. It is therefore specious to suggest that "anything goes" as this will fail to relate one's authenticity to a horizon of significance (for otherwise the creation loses the background that can save it from insignificance).

Professor Taylor's ethic of authenticity may thus be summarized as follows:

a) it involves the creation, construction and discovery of identity;
b) it involves originality;
c) it frequently involves opposition to the rules of society or the constraints of social structure;
d) it requires openness to horizons of significance; and
e) it requires a self definition in dialogue

Discussion
Professor Taylor argues for the recognition of an ethic or ideal of authenticity. There is a sense that we ought to be authentic. In order to achieve happiness and attain the good life, we must be authentic. We must discover who we are and express it, even if this involves overcoming external obstacles.

The discovery of self identity comes primarily from within. This is a first quadrant phenomenon - it is a subjective experience, unique to a single individual. No other person experiences the world in exactly the same way as I do. No other person relates with the Infinite in exactly the same way as I do. This is the world of recessed feeling, where the individual consciousness resides. This consciousness may listen to cues from within or it may take its cues from outside of itself - the external world. Professor Taylor recognizes, as few others do, that there is a distinction between these two. The social constructionist viewpoint, discussed earlier, suggests that identity is a product of socialization. Here, Taylor is suggesting that authentic identity is formed by "listening to one's inner voice" which is an entirely different matter. This is in contrast to a socially constructed identity which is dictated by the external environment. It is the articulation and expression of authenticity in the face of external opposition which gives it moral worthiness.

Professor Taylor's argument does not allow pure subjectivity however. His requirement for the existence of "horizons of meaning" brings the objective\collective world into play. The ethic of authenticity involves a tension between the first quadrant subjective and the other three quadrants. We are authentic only so far as we are social and express ourselves in a social setting. Being authentic, being faithful to ourselves, involves being faithful to something which is produced in collaboration with others or can be used by others. There is always a dialogue which crosses to others and therefore involves more than just "I".

The notion of an authentic self and the discovery and expression of it is one that is prevalent in modern day culture. This is the concept of being "real". We are encouraged to be genuine and to learn how to express our feelings. This is the message of the immensely popular "Dr. Phil" (Phillip McGraw Phd) whose psychology is based upon an ethic of authenticity. Popular movies such as The Hours and Far From Heaven explores themes of alienation, where the characters grapple with the dictates of social structure against the need for authentic self expression.

Beyond its presence in modern culture, an ethic of authenticity can also be found in psychology. An example of this is found in the writings of the eminent psychologist, Carl Jung. He records in his memoirs that while the young individual's task was primarily to emancipate himself from his immediate family, establish himself in the world and found a new family in his turn, the middle aged individual's task was to discover and express his own uniqueness as an individual. Men become neurotic at the mid point of life because, in some sense, they have been false to themselves and have strayed too far from the path Nature intended them to follow. By scrupulous attention to the inner voice of the psyche, which manifests itself in dreams, fantasies and other derivatives of the unconscious, the lost soul could rediscover its proper path. Jung called this process "individuation"which took one towards a goal he called "wholeness" or "integration" .

It would appear therefore that the ethic of authenticity is deeply rooted in our consciousness and finds its expression in modern culture, in psychology and in philosophy. The philosophic argument is the strongest because it suggests an ontology - a theory of being - that incorporates this ethic as an integral part of being human.

It follows that our judges cannot escape this climate of individualism and the concomitant need for self expression and self creation. If Professor Taylor is correct, it is felt on an individual, interior level - a call to find, develop and express the uniqueness of individual self. And it is felt on an exterior level as well - as manifestation of Western culture with its emphasis on individualism and self determination.

The question which arises, and to which I now turn, does this have any connection with the phenomenon of alternate dispute resolution?

Part IV - The Phenomenon of Alternate Dispute Resolution

Alternative dispute resolution (ADR) describes conflict resolution processes that are an alternative to civil litigation. ADR processes can be tailored to respond to the unique needs of the participants, the particular context and history of the dispute and the specific obstacles to settlement. The ultimate outcome of these processes is consensual; the parties retain control and make the key decisions on settlement. It is useful to think of conflict resolution processes as a continuum, with adjudication at one end (formal and obligatory). At the other end would be processes designed to achieve informal consensus and actually prevent disputes. In the middle would be processes of varying degrees of formality and voluntariness.

The most popular forms of ADR are mediation and arbitration. Mediation is a process of facilitated negotiation with the assistance of a neutral third party. The process is consensual, informal and private. Arbitration is a voluntary process in which parties to a conflict request the assistance of a neutral third party to make a decision for them regarding contested issues. It too is private and less formal than court proceedings. Other forms of ADR include neutral evaluation, minitrials, moderated settlement conferences and "med\arb", a hybrid process of whereby the mediator ultimately has the power to impose a resolution upon the parties.

There is a sizable literature involving comparisons between the adjudicative model and ADR processes. As noted earlier , this literature tends to address the issues within the context of ascertaining which of law or ADR, meets specific collective or objective goals for society. Carrie Menkel-Meadow suggests that there are three societal value issues at stake in this debate:

There are, as I see it, three value claims. First, there is the efficient-justice claim: Full adjudicatory trials are too long, and there could be too many of them to permit expeditious justice. Ultimately, failure to provide "speedy and inexpensive justice" can become a substantive justice problem. Thus, proponents of mandatory settlement conferences, court-annexed arbitration, and mediation argue that more efficient justice is better justice.

Second, there is the substantive justice claim: The principal function of our legal system is to provide fair and just results to the individual disputants and to society. These results are dependent on rules, generated from other people's disputes, that help define appropriate behavior. Thus, in considering any dispute resolution device we should ask if this process is the most likely to produce a just result for the parties and/or the best result for the future guidance of society. (The answer to this compound question is sometimes different for each of its parts. This contributes to the difficulty of assessing whether settlement is appropriate.)

Third, there is a claim I will call a substantive process claim, made most recently by Judith Resnick. Proponents of substantive process argue that whether a process is public or private (subject to accountability), coercive or voluntary, reasoned or rationalized, matters a great deal, both for the substantive justice achieved and for the legitimacy of the entire process as viewed by those inside of the dispute and by those outside.

These questions, on the nature of procedural and substantive justice and ways to ensure them are at the heart of the ADR\law debate. At stake is a determination of which system provides "better" justice. It is a normative question which invites the evaluation of two competing normative systems. The questions are difficult because of the enormity of the variables at play in evaluating complex systems like adjudication and mediation.

Returning to Ken Wilber's four quadrant model, the normative questions above are almost universally entertained in terms of the third and fourth quadrants (individual\exterior & collective\exterior). Evaluation of systems is an objective process and the criteria upon which things are judged is almost universally external and objective.

ADR theory however, invites us to participate in the subjective, individual quadrant. ADR theorists have examined the subjective motivations of disputants with a view to unmasking the nature of conflict and its causes. In contrast to traditional legal systems which conduct themselves almost exclusively in the external\objective quadrant, ADR theorists acknowledge and explore the subjective nature of conflict. This ranges from examinations into the psychological motivations of conflict to the cultural dimensions of conflict.
One of the major departures between legal analysis and ADR theory is that, in the case of ADR, disputing is examined from a behavioural perspective rather than through a normative framework as is in the case in law. Analysis of the nature of conflict and how people exhibit disputing behaviour provides clues into why people conflict and how disputes can be avoided or more easily resolved. One such theorist is Bernard Mayer, author of The Dynamics of Conflict Resolution (A Practitioner's Guide). According to Mayer, in order to properly understand conflict, we must first recognize the various dimensions of conflict:
Conflict may be viewed as occurring along cognitive(perception), emotional (feeling) and behavioral (action) dimensions. This three-dimensional perspective can help us understand the complexities of conflict and why a conflict sometimes seems to proceed in contradictory directions.

Mayer explains that the cognitive component is a set of perceptions or beliefs that one's own needs, interests, wants or values are incompatible with someone else's. This may be either a subjective or objective phenomena - as a practical matter, if one person believes that something is the case, this can create a conflict even if that view is not shared by anyone else.

The second dimension of conflict is found in the emotional realm. Disagreements trigger emotional responses from within us - fear, sadness, anger, remorse etc. These feelings when felt in relation to another person or external situation often give rise to the emergence of conflict. Here again, Mayer emphasizes the subjectivity of this dimension. " Often a conflict exists because one person feels in conflict with another, even though those feelings are not reciprocated by or even known to the other person. The behavioral component may be minimal, but the conflict is still very real to the person experiencing the feelings."

The third dimension is behavioral - the actions we take to express our perceptions and feelings in relation to another. This involves taking action to get our needs met in a way that has the potential for interfering with someone else's ability to get their needs or wants satisfied.

Recognition of these various dimensions explains the why conflict often does not proceed in a simple linear path and why it can appear to be completely irrational This insight is useful to conflict resolution practitioners as resolution of a conflict will necessarily involve all three dimensions. Mr. Mayer explains:
Whether disputants have reached resolution in a conflict depends to a large extent on how they view the situation.. If they believe that the conflict is resolved, perceive that their key issues have been addressed, think that they have reached closure on the situation, and view the conflict as part of their past as opposed to their future, then an important aspect of resolution has been reached.. Sometimes people make a deliberate decision that it is time to move beyond their conflict. They are resolved to be done with it, and if they can hold onto that resolve, they have to some extent willed themselves to resolution. Resolution at this level can precede or result from resolution of the emotional or behavioral components. Mostly, however, the cognitive dimension of resolution develops in tandem with the other dimensions...

Resolution on the cognitive dimension is often the most difficult to attain because people tenaciously hang on to their perceptions and beliefs about a conflict. Disputants may be locked into a set of behaviors and anchored in an emotional response as well, but people can decide to change behavior, and emotional responses often very quickly and repeatedly. Beliefs and perceptions are usually more rigid. They are often the cornerstone of a person's sense of stability and order, particularly in the midst of confusing and threatening situations. People cling to their beliefs and perceptions, because to question them threatens to upset their sense of themselves and their world, and this sense is an essential guide through difficult times. Also, many people equate changing their views of a situation with admitting that they were wrong, something most people do not readily do.
In considering the question of conflict resolution, Mr. Mayer also refers to the concept of depth. This is the idea that conflicts occur on multiple levels and that resolution of conflict can often only be achieved by finding and working at the appropriate level. This notion reflects a layered view of personality ie that human beings operate at multiple levels simultaneously - emotionally, rationally, socially etc. Complex conflicts can only be resolved by addressing the concerns of people at the appropriate level - where people have their motivation for engaging in a conflict but not at such a level that it would require them to work through fundamental life issues that are beyond their practical motivation. This involves an uncovering of the hidden interests which lie beyond or underneath the party's stated position.

The distinction between interests and positions is a fundamental underpinning of ADR theory. On the presenting level, conflict is defined by each party's stated positions. However, at a deeper level, the parties have various interests which define and motivate their stated position. These underlying interests are typically defined as their hopes, fears, desires and concerns. By uncovering each party's interests, it may be possible to find mutual or shared interests which allow for resolution of the problem. Fisher and Ury state:

Behind opposed positions live shared and compatible interests, as well as conflicting ones.. We tend to assume that because the other side's positions are opposed to ours, their interests must also be opposed. If we have an interest in defending ourselves, then they must want to attack us. If we have an interest in minimizing the rent, then their interest must be to maximize it. In many negotiations, however, a close examination of the underlying interests will reveal the existence of many more interests that are shared or compatible than ones that are opposed.
The distinction between positions and interests is a part of negotiation theory, which is a significant subset of ADR theory. Negotiation provides the foundation for one of the principal forms of ADR, namely, mediation. As identified above, mediation is simply "third party assisted negotiation". By uncovering hidden interests, mediators attempt to improve or enhance the negotiations so that the parties can come to a mutually acceptable agreement.

The effort to uncover hidden "interests" reveals a further debate which exists amongst ADR practitioners. What is the appropriate goal or outcome for conflict resolution processes? Or to return to the concept of depth, at what level of depth should resolution be achieved? This is a debate which does not exist in connection with the legal system - results in that forum are confined to monetary awards, injunctions and declarations of rights. Consensual processes such as mediation offer a much broader range of possible outcomes. This invites the question of how we should evaluate outcomes or settlements.

The problem of evaluating outcomes is the source of significant debate within the ADR community. This debate finds its most vocal expression in connection with mediation practice and the ways and means of achieving outcomes. The debate was struck by Robert Baruch Bush and Joseph P Folger in The Promise of Mediation They suggest that, generally speaking, mediators are focused on getting a settlement or a "deal" as the desired outcome of a mediation. In their words:

Even styles of mediation that appear quite different on the surface are still driven by the same underlying orientation to conflict, an orientation that leads disputants and third parties alike to view their task and direct their efforts toward identifying problems and constructing solutions. In the world of practice, mediation is generally problem solving mediation.

Bush and Folger advocate moving beyond a problem solving orientation to one they describe as a "transformative" orientation. This involves viewing conflict as an opportunity for human growth rather than as a problem to be solved. Bush and Folger explain:

In this transformative orientation, a conflict is first and foremost a potential occasion for growth in two critical and interrelated dimensions of human morality. The first dimension involves strengthening of the self. This occurs through realizing and strengthening one's inherent human capacity for dealing with difficulties of all kinds by engaging in conscious and deliberate reflection, choice and action. The second dimension in involves reaching beyond the self to relate to others. This occurs through realizing and strengthening one's inherent human capacity for experiencing and expressing concern and consideration for others, especially others whose situation is "different" from one's own. Moral thinkers like Carol Gilligan (1982, 1988) among others, suggest that full moral development involves an integration of individual autonomy and concern for others of strength and compassion. Therefore, bringing both of these inherent capacities together is the essence of human moral maturity. In the transformative view, conflicts are seen as opportunities for developing and exercising both of these capacities, and thus moving toward full moral development.

The goal of mediation is therefore to transform the parties as human beings rather than to solve the "problem". Under this view, the specific goal is the development of moral maturity. Conflict is not seen as a problem but as an opportunity for growth and learning. It affords people with the opportunity to change themselves and their outlooks. The goals of mediation are therefore, empowerment and recognition.

Empowerment occurs when a person gains a greater sense of self worth, security, self determination and autonomy. This occurs even if the external constraints of the party's circumstances still impose certain limits so long as, within those limits, she has exercised greater control over her situation; the self is strengthened as a result".

Recognition occurs when a person realizes and enacts his capacity to acknowledge, consider and be concerned about others. This occurs when a person reaches beyond himself to consciously strive to understand the perspectives and concerns of the opposing party. In the course of a conflict this recognition can be slight or transitory, it may grow and recede. However slight, a precondition of recognition is that it be given freely: "It is the decision of the party to expand his focus from self alone to include the other that represents the moral growth expressed in giving recognition."

Bush & Folger also identify the problem of mediator influence.
... mediators influence conflicts as they unfold during mediation. Global assessments influence what the parties come to think the dispute is about; they mark what is relevant or appropriate to talk about.. When mediators drop issues, they go even further in influencing what will remain on the table for discussion. In effect, they "tell" parties what is important about their conflicts, or at least what is relevant to the mediation process. And in shaping settlement terms, mediators influence what the parties finally agree to, what they see as solutions to their problems.

In light of the significant effect that a mediator can have on the outcome of a mediation, it is important for the mediator to have specific goals or objectives for the mediation session(s). This requires the mediator to determine his orientation towards the mediation and his goals for it. This goes beyond a choice between transformative or problem solving mediation. He must also decide the nature of his role and the extent of his involvement in the content of the dispute. This too is a subject of much debate within the mediation community - should a mediator engage in an evaluation of the relative strengths and weaknesses of each party's position?

A further related issue involves the neutrality of the mediator. In a similar manner to that of judges, mediators are assumed to be "neutral" and "impartial". Neutrality refers to the absence of any connection or association between the mediator and either of the parties.

Impartiality refers to the absence of bias or predilection in favour of either of the parties. Neutrality may be attainable by careful attention to the selection of mediator by the parties. Impartiality may be more difficult as the mediator inevitably brings his own life experience to the mediation session. Christopher Moore comments on this issue:

Impartiality and neutrality does not mean that a mediator may not have a personal opinion about a desirable outcome to a dispute. No one can be entirely impartial. What impartiality and neutrality do signify is that mediators can separate their personal opinions about the outcome of a dispute from the performance of their duties and focus on ways to help the parties make their own decisions without unduly favouring one of them.

This classic definition of neutrality and its importance is questioned by Kenneth Cloke in Mediating Dangerously. Mr. Cloke, an experience mediator, urges empathetic honesty, rather than superficial neutrality:

The language of neutrality creates an expectation that mediators will act fairly once they erase their own past experiences. But real fairness comes from using the past to gain an open, honest, humble perspective on the present. Worse, neutral language is bland, consistent, predictable, and homogenous; it is used to control what cannot be controlled. When confronted with something unique, or with paradox, contradiction or enigma, a stance of neutrality makes us incapable even of observing without denying or destroying the very thing being observed, which is often a conflict that is riddled with paradoxes, contradictions and enigmas.

The idea of neutrality originates in the law, as a result of a superficial similarity between the role of settlement judge and mediator, together with a lack of appreciation for the central differences between them. What is called neutrality or objectivity in the law exists neither in the solitary decision making power on the part of the judge, nor in the partiality and subjectivity that flow from an adversarial, advocacy-based system.

In mediation, there is no judge, no power to decide in anyone other than the parties, no process other than consensus, and no victory other than a rough equality of loss. Both sides have the right to veto any outcome they perceive as unequal. For this reason, it is not neutrality that is important, but the ability to reach out, use subjectivity, and deepen empathy and honesty between adversaries.
Discussion
This sampling of ADR theory is exactly that, a very thin slice of an enormous pie. I have presented five related topics - the dimensions of conflict, the concept of depth, the distinction between positions and interests, mediator orientations and mediator neutrality - to illustrate the subjective direction that "ADR" generally takes in the articulation of theory.

First, we can note that these topics are peculiar to alternate dispute resolution - we do not find parallel counterparts in legal theory or traditional legal analysis. Judges do not concern themselves with the emotional well being of the parties before them; the parties' motivations are, in large measure, irrelevant to his determination of their legal rights. The judge does not labour over the psychological or cultural underpinnings of stated positions or whether the party's are empowered or disempowered by the proceedings. He assumes his neutrality and his impartiality. He evaluates the parties position and makes findings and a decision. He gives reasons and considers precedents. His analysis is rational and framed by the legal categories of the law.

Second, as this sampling of issues demonstrates, ADR theory and practice tends to focus on the immediate interests of the parties. While the parties may represent a constituency, the conflict resolution mechanism's focus is on the individual parties' interests, their motivations, their moral maturity etc. ADR theory and practice recognizes that ultimately conflicts are about particular people engaged with other people in disagreement. The adjudicative system however, always has the collective group in its contemplation, the point made by Professors Fiss and Luban in their articles against settlement . This inhibits exploration of the subjective dimension as common denominators are always sought. The public interest and the value of precedent is never absent from the adjudicative system.

Third, ADR theory attempts to articulate bridges between between the objective and subjective quadrants. The three dimensions of conflict are an example of this. The emotional realm is purely subjective - the feelings of the person in conflict. The behavioural aspect is purely objective - the actions taken by the individual or group contributing to the conflict. The cognitive aspect crosses this bridge, integrating both subjective and objective elements. Positions are objective in nature, interests are subjective in nature. The outcome of a mediation may be an internal outcome, such as empowerment or a sense of recognition or it may be an external outcome such as the distribution of resources (eg money). Each of these types of outcomes has validity although the validation criteria is different. Again, however, ADR theorists have articulated theory which recognizes the validity of both types of outcomes and their inter-relationships.

This subjective direction of ADR theory is in alignment with the ethic of authenticity. Recall Professor Taylor's argument that authenticity involves the discovery and expression of unique identity. It is obligatory in the sense that the authentic self seeks expression even in the face of external constraints. The expression of authenticity is dialogical - it involves our relationships with others, even though it finds is origin from within.

While the type and scope of ADR processes vary greatly, generally speaking, ADR processes offer disputants a much greater level of involvement in the resolution of conflict and are therefore more "hands on" than the lawyer -run adjudicative system. The parties are able to express their feelings, their concerns and fears , their "interests" directly with one another. This self expression can be rewarding to both the speaker and the listener. The parties are not separated from the content of their dispute by the use of lawyers who speak for them. They are not separated from the specifics of their concerns by the legal characterization of the "issues". .Kenneth Cloke, specifically uses the word "authentic" to describe the process of honesty he advocates for mediation:

People who adopt poses and masks are lost not only to others, but to themselves as well. They can only emerge from these false identities by honestly accepting the truth of who they are without judgments or blame, and open themselves up to authentic, deeply honest levels of communication. A broad set of poses and masks are readily available through professional titles, organizational hierarchies and corporate identities.....From a place of anger or blame, it is difficult to stimulate anything but counterattack or defensiveness. But from a place of openness and authenticity, vulnerability and honesty, empathy and introspection, it is possible to discover a different perception, gain a clearer sense of the other person, learn and find common ground.

In this brief discussion, I have attempted to canvass the theoretical aspects of ADR in reference to the law, Ken Wilber's four quadrant model and the ethic of authenticity. I have yet however, to directly relate this discussion to the judiciary and their relationship with Alternate Dispute Resolution. This discussion follows and forms the concluding part of this paper.

Part Five Authenticity, Judging & Development
In this final part I will attempt to explain how and why an ethic of authenticity provides an explanation for the judicial interest in alternate dispute resolution.

In Part Two I suggested that judges may be gaining awareness of the inherent subjectivity of legal processes either as a result of the critical legal studies movement or more generally as part of the postmodern trend to subjectivism. The postmodern view suggests that the legal system is a construct - supported by nothing more than its own history. Legal theory and the law itself are forms which owe their existence to the collective acceptance and practice of them. Their truth is premised upon the third and fourth quadrants.

If a judge becomes aware of this, a choice is created: the judge can embrace subjectivity or the judge can remain in the established parameters of the law and the classical account of adjudication. As discussed above, the processes of ADR incorporate subjectivity to a far greater degree than the law and therefore truly stand as an "alternative".

The ethic of authenticity speaks to this choice by its very nature. The conflict between inner and outer values is integral to the question of being authentic. In the context of adjudication, there is a culture within which judges operate. This includes all of the myriad factors which make up their working environment. The ethic of authenticity is in play when the judge's inner voice is at variance with the dictates of the external environment. The emergence of doubt over institutional structures and ingrained cultural practices is particularly problematic because the external environment provides a strong disincentive to express contrary opinions. This would be particularly so in the case of a judge who sits at the pinnacle of the adjudicative system. It is my argument that these cultural factors are so strong that these doubts remain hidden in the inner realm of each judge, protected and inaccessible to empirical investigation.

This being the case, I will offer my own doubts - those which lead me to the exploration of alternate dispute resolution. As a litigator in the civil justice system for over twenty years, my own thoughts about the adjudicative system have crystallized into a perception that the legal system is actually founded upon certain myths, which because of their widespread acceptance, have the appearance of truth. As the journey towards authenticity involves the communication of individual truth, I will present what I consider to be the "myths" of the adjudicative system.

Myth No. 1 - the doctrine of precedent creates certainty in the law
Judges and lawyers alike labour over precedents when arguing and deciding cases. With time, the proliferation of substantive law has grown exponentially. Each area of the law subdivides itself into greater and greater sub-specialities. This explosion of rules, regulations and cases stands as a formidable obstacle to anyone who claims general knowledge of the law; the result is that the law is more uncertain than ever; a team of lawyers is now needed where one would do 25 years ago. Professor Anthony Kronman agrees:
.... the practice of law is today in danger of losing its temporal range and shrinking down to a series of disconnected points. The growing volume of law and the multiplication of decisions interpreting it has weakened the precedential value of each single judgment - since one can now often find many conflicting answers to the very same question - and this weakening of precedent has cut the practice of law off from its normative base.

Myth No. 2 - imposing jail sentences will deter others from committing like crimes
Every day in our criminal courts, judges cite general deterrence as a reason for incarcerating individuals. The idea is that the populace will hear about the sentence and thereby be deterred from engaging in similar conduct. This type of criminal sanction has been imposed for generations with absolutely no end to this practice in sight. The real causes of crime are founded in societal factors such as poverty, addiction, lack of education and family breakdown. There is never ending stream of offenders and yet judges ritualistically intone the same words regarding the need for general deterrence over and over again, sentence by sentence, offender by offender. Federally appointed judges to the provincial superior courts preside over criminal and civil cases. While not directly relevant to the issue of alternate dispute resolution in civil cases, this dynamic of institutional hypocrisy, cannot help but to impact upon the sense of authenticity and purpose held by each member of the judiciary.

Myth No. 3 - the adversarial system will ensure that the truth will be heard
In my experience as a civil litigator, the rules of evidence are more often used to exclude relevant and truthful information than they are used to protect and safeguard the trier of fact from hearing unreliable and false information. There are many ways in which important and pertinent information is kept away from the judge or jury - the failure to give proper notice under the Evidence Act or the inability to find witnesses for example. Often opposing counsel refuse to allow damaging information to be received in evidence upon whatever legal means are available, even if they personally believe the information to be true. Beyond these realities, the trial is more of a performance than a recitation of events from the past. Witnesses are "prepared" by their counsel, a euphemism that belies the reality of the rehearsal being undertaken. The trial takes place years after the events in question with the result that the truth is recreated with the lawyers as scriptwriters, choreographers and directors. This has a double sided negative effect - the judge hears what the lawyers believe is necessary for them to make out their case, while the disputants do not have an opportunity to actually say what it is that they want to say.
In her article, Failing Faith: Adjudicatory Procedures in Decline , Judith Resnick identifies the hidden assumptions which must exist for a belief in the truth finding power of the adversarial system. She notes that chuckles are the frequent response when she quotes Wigmore's description of cross-examination as the "greatest legal engine ever invented for the discovery of truth". She continues:

To rely upon lawyer-based adversarialism, one must subscribe to a series of assumptions about the participants. First, proponents of this model must posit that the disputants are rational, competent actors who make deliberate decisions calculated to enhance their positions. Second, proponents must assume that the disputants have access to resources (in terms of dollars and of power) which in turn enable the generation of information and which give the disputants the opportunity to exercise choices among competing options. Third, when relying upon attorneys (to generate information, to relate information to their clients, and to be conduits of information from client to opponent and to court), the assumption is that the attorneys, acting as agents for disputants, have interests that coincide with those of their clients. A final, and central, assumption is that competition between balanced opponents (these autonomous attorney-client units) will lead to the triumph of truth -- or at least to the emergence of insights with normative power. With the two sides of a dispute more or less evenly matched, then at least in theory, the contest permits the "correct" winner to emerge.
It is not a great leap to see that many, if not all of these assumptions, are highly questionable.

Myth No. 4 - the judge is able to disassociate his personal experience from his role as a judge
The subjectivity of judges was canvassed in Part II. However, my personal experience as a trial counsel has reinforced this to me on so many occasions that it was my conclusion before I had ever read anything of critical legal theory. It is hard to convey the utter unpredictability of trial judges. Often and inexplicably, judges will take a personal dislike to one of the parties or to a particular witness or to counsel. Other times, the judge will focus on some obscure point in the evidence as being meaningful and determinative of the issues. It is not uncommon for the judge to berate counsel for their failure to adduce some point of evidence which the judge believes was important. Some judges rule the court room with an iron hand while others are nearly comatose in their effect. Weeks and years of preparation can go "out the window"in seconds given the unexpected idiosyncrasies of the judge.

It may be said that this observation is only discernable to a lawyer who has the advantage of comparing judicial reactions. Typically the parties only see the one judge and the judge himself does not see himself and his reactions in relation to other judges. This underscores the fact that each trial is a unique event - no two trials have the same issues, the same parties and the same judge. It has been my observation that each trial takes on a surreal atmosphere - a group of people come together in an intense interaction which lasts the length of the trial. The presentation of the evidence is only a play within a larger play. The cast of characters include the judge, the lawyers, the parties, the witnesses and the court staff. The personal interactions between all these players constitutes the drama which unfolds. Each person has a role and the issue at stake is whether the role assigned affords the opportunity for adequate authentic expression.

So long as the judge accepts his assigned role and does not question it, the dynamic nature of his larger role may remain hidden. If the judge expands his awareness to a different level, seeking to achieve a greater depth in the understanding and resolution of the conflict, he has a problem. He cannot move out of his assigned role in any substantive fashion as legal structure and tradition prohibits this. He must look beyond the normative framework he has been given and alternate dispute resolution theory and practice provides this.

Authenticity is not something which can be ignored - it is an innate part of each of us. This is what Professor Taylor means when he suggests that we have a moral ontology. We can fashion our lives according to external dictates but it will be at the cost of our personal happiness. This is a moral imperative to discover and express our true identity. How may this be achieved? I would suggest that the following elements would be included in living the "authentic life":

1. Authenticity requires honesty
Authenticity demands internal truth. Self deception and denial are the antithesis of authenticity. If you cannot be honest with yourself, how can you be honest with others? So an ethic of authenticity includes an ethic of honesty, and most importantly, an ethic of honesty with oneself.

2. Authenticity requires internal dialogue
This is the need to listen to one's inner voice discussed earlier. It suggests a relationship with oneself, independent of the demands and rewards of the external environment. This inner voice must be recognized and honoured. Honouring one's inner voice means trusting it, being guided by it and ultimately acting upon it.

3. Authenticity requires discovery and creation
Authenticity involves the creation and expression of our uniqueness. This involves the unfoldment and discovery of who we are . This is not a cognitive search for meaning per se but rather a process of genuine expression. There is no conventional response to life, only an active, unique living of it. The impulses of our being must be unearthed, respected and acted upon. In this sense, each life is a miracle of creation and should be recognized as such.

4. Authenticity requires expression
Authenticity requires that we express our true selves to others. The dialogical nature of human agency, discussed earlier, dictates that we express ourselves. The issue is whether we choose authentic self expression or some other mode of conformity or subterfuge. Each of our actions and statements is an expression of who we are or who we are pretending to be. The authentic choice is always present.

5. Authenticity requires integration
Harmony in life is achieved when our inner dimension is in accord with our outer dimension. This means we must do work that expresses who we are and for which we have a gift. Behaviour and belief must be congruent. When our outer life is an expression of our inner selves we have a sense of "being at home" - we have a feeling of being part of something divine that is in us and everywhere. Authenticity dictates an integration between the outer and inner spheres of life.

These five characteristics of authenticity have a common denominator - the notion of an inner world that is separate from the external world. The ethic of authenticity suggests that there is something from within that is worth listening to. Often the inner impulse is faint or uncertain and therefore ignored. However, as it surfaces in our awareness, it becomes more difficult to ignore. So too with judges. The notion that the law may be indeterminate attacks the foundation of the legal enterprise. The objectivity, impartiality and efficacy of the legal system are open to question. While remaining a judge, these doubts reside must remain unspoken and internal. They cannot be expressed in any formal fashion as the legal structure and tradition prohibits this. But authenticity demands otherwise, and alternate dispute resolution thereby becomes of interest.

There is one final aspect to the ethic of authenticity and its relationship to ADR that I wish to explore. Obviously not all judges express interest in ADR. Why are some interested and others not? This phenomena may be explained, I believe, by considering a developmental perspective. This is the notion that individuals evolve and grow throughout their lifetimes. Various theorists have articulated models to identify and explain the stages of growth typically encountered by persons throughout childhood and into adulthood. The most well known of these is Abraham Maslow's hierarchy of human needs. Lawrence Kolberg has identified the stages of moral development and James Fowler has created a model of religious development.

Each of these theorists adopt a staged approach to human development - the idea that as a person grows and learns, he proceeds through certain identifiable stages of maturity. The process is not strictly linear - a person will continue to exhibit characteristics from previous stages when at a certain level and can leap to future stages. Ken Wilber explains:

Even in their stronger versions, such as Kolberg's, the self at any given point in its development will tend to give around 50 percent of its responses from one level, 25 percent from a level above that, and 25 percent from a level below it. No person is ever simply "at" a stage. And further, there are all sorts of regressions, temporary leaps forward, peak experiences and so on.

This developmental perspective is best explained by the presentation of one of these models. Scott Peck summarizes James Fowler's model of spiritual development as follows:

Stage 1 Chaotic, Antisocial In this most primitive stage people may appear either religious or secular, but either way, their belief system is profoundly superficial.. It may be thought of as a stage of lawlessness.

Stage 2 Formal, Institutional This is a stage of the letter of the law in which religious fundamentalism (meaning most religious people) is to be found.

Stage 3 Skeptical, Individual Here is where the majority of secularists are situated. People in this stage are usually scientifically minded, rational, moral and humane. Their outlook is predominantly materialistic.. They tend to be not only skeptical of the spiritual level, but not interested in anything they cannot be proven.

Stage 4 Mystical, Communal In this most mature stage of religious development, which may be thought of as one of the spirit of the law, women and men are rational but do not make a fetish out of rationalism.. They had begun to doubt their own doubts.. They feel deeply connected to an unseen order of things, although they cannot define it. They are comfortable with the mystery of the sacred.
Each stage of these models involves a consistent worldview for the self - how he perceives the world and relates to it. As an individual grows, his perspective on the world and his relation to it changes - he moves beyond one stage and into the next. The following stage includes the lessons learned in the previous stage. Development continues as the individual's awareness grows. The upper levels have been the subject of intense enquiry and speculation and there is an enormous literature in the field of developmental psychology.
My purpose is not to present this theory in detail but rather to suggest that this idea - the developmental nature of human consciousness has application to the phenomenon of alternate dispute resolution and in particular to the issue of the judiciary embracing ADR. My conception is that the attraction to ADR practices is an evolution from the participation in adversarial processes. The law, with its reliance upon instrumental reason and adversarialism does not achieve the depth of relatedness which the self seeks in its relations with others.

A useful analogy is found in Fowler's religious stages. Persons within Stage Two of his model, Formal, Institutional, have a world view that is orderly and dependable., suggesting that all of life's mystery can be answered by reference to a text of revealed truth. The religious theology provides a foundation structure by which a life may be lived. - there is right and wrong, judgment and consequences. This gives way to secularism, where rationalism, skepticism and empiricism reign. It is not hard to see that the legal system encompasses these two stages. Legal positivism operates as a foundational structure embracing rationalism and objectivity. From within organized religion there is an answer to all questions - there is no need to look outside of the religion for answers. From within the legal system , it too provides a complete world of answers. Outsiders like sociologists and criminologists (and now ADR theorists) may criticize the operation of the legal system but their arguments and theories have had little impact on the mechanics and traditions of the law. A judge is part of a complete system that does not need to look outside of itself to complete its role. At issue is whether he is comfortable within that system. I am suggesting that it is possible to grow beyond the adversarial system and therefore to seek alternatives to it.

Different stages of development are defined by the individual's deviation from cultural norms. Ken Wilber explains:

Every society has a certain center of gravity, we might say, around which the culture's ethics, norms, rules and basic institutions are organized, and this center of gravity provides the basic cultural cohesion and social integration for that society.

This cultural center of gravity acts like a magnet on individual development. If you are below the average level, it tends to pull you up. If you try to go above it, it tends to pull you down. The cultural center of gravity acts as a pacer of development - a magnet pulling you up to the average expectable level of consciousness development. Beyond that your on your own, and lots of luck, because now the magnet will try to drag you down - in both cases, you're "outlawed."

And so again we return to the ethic of authenticity. There is often a tension between the inner voice and the external world. Moral virtue is found in listening to that inner voice, by overcoming the inclination to conformism, by expressing what it is that you have to express. The judge finds himself immersed in a legal culture. It has its centre of gravity. It compels certain behaviours. If a judge has grown beyond the formalism of the law or the adversarial nature of its proceedings, he will be unhappy in what he does. There will be a disparity between what he does and who he is. This discrepancy was captured brilliantly by Oscar Wilde who said:

A man whose desire is to be something separate from himself, to be a Member of Parliament, or a successful grocer, or a prominent solicitor, or a judge, or something equally tedious, invariably succeeds in being what he wants to be. That is his punishment. Those who want a mask have to wear it.

The judge who wants to go beyond the myths described earlier will have to go it alone. This can be extremely difficult as our surrounding environment provides a background of meaning to us. Professor Taylor also speaks on the significance of the identity which is created by our shared meanings:

People may see their identity as defined partly by some moral or spiritual commitment, say as a Catholic, or an anarchist. Or they may define it, in part by the nation or tradition which they belong to, as an Armenian, say, or a Quйbecois. What they are saying by this is not just that they are strongly attached to the spiritual view or background; rather it is that this provides the frame within which they can determine where they stand on questions of what is good, or worthwhile, or admirable, or of value. Put counterfactually, they are saying that were they to lose this commitment or identification, they would be at sea, as it were; they wouldn't know anymore, for an important range of questions, what the significance of things was for them.

And this situation does, of course, arise for some people. It's what we call an "identity crisis", an acute form of disorientation, which people often express in terms of not knowing who they are, but which can also be seen as a radical uncertainty of where they stand. They lack a frame or horizon within which things can take on a stable significance, within which some life possibilities can be seen is good or meaningful, others as bad or trivial. The meaning of all these possibilities is unfixed, labile, or undetermined. This is a painful and frightening experience.
What this brings to light is the essential link between identity and a kind of orientation. To know who you are is to be oriented in moral space, a space in which questions arise about what is good or bad, what is worth doing it and what not, what has meaning and importance for you and what is trivial and secondary.

The position of judge is a defined role. It is imbued with status and privilege. For many, the life of adjudication will be entirely consistent with their internal sense of who they are. The parameters of the legal system are complete and comforting. The judge stands above the hue and cry of battle and uses his power of reason to mete out justice as he sees fit. The abstractions of the law insulate him from the real life agonies of the disputants before him. He is able to express his creativity through the decisions he writes. It is a complete and satisfying role. To go beyond such an identity is simply not necessary for many.

For others, however, the journey is mandated; compelled by a need to seek a greater level of depth than is allowed by the formality of law. The passivity and neutrality mandated by the position of judge inhibits the expression of self and the opportunity to engage in meaningful exchange. The challenge is to find a way to do this while remaining a judge. Alternate dispute resolution processes stand in answer to that challenge.

Summary & Conclusions Review
In Part One, Ken Wilber's four quadrant model was presented which provides an epistemological umbrella for the subsequent discussion . Truth claims may be categorized as subjective or objective, collective or individual. Each type of truth has validity and greater truth is achieved by recognition and acceptance of this. Subjective truth is necessary to achieve depth and full understanding.

In Part Two, the nature of judging and adjudication was explored in relation to legal theory and postmodernism. The classical account suggests that the law consists of a body of definite, logically related rules applied in a logical and impersonal fashion by impartial judges. Critical legal theorists have challenged this assumption by suggesting that the law is indeterminate - judges are really acting in a political fashion through their rulings. This is echoed by the postmodern intellectual climate which seeks to "deconstruct" established structures to unearth the hidden political and gender biases inherent in them. These developments create a climate of doubt whereby the judiciary may fall prey to the prevailing winds of subjectivism and relativism

In Part Three Professor Taylor's ethic of authenticity was presented. Professor Taylor advances the idea that there is moral worth to the creation and expression of self identity. This undertaking is not based upon a premise of relativism, where "anything goes" but rather is premised upon dialogue with others and horizons of significance. Notwithstanding this, the ethic of authenticity is based upon a voice from within - we must be true to ourselves.

In Part Four selected aspects of ADR theory were presented for illustration purposes. In a very general way, this demonstrated the subjective direction ADR takes towards the resolution of conflict. While theoretical debate continues, the concepts of depth and authenticity find a direct place in mediation practice, a central component of ADR. Disputants will find an opportunity for authenticity given a mediator who seeks to achieve this level of depth and is not overly concerned with the procurement of external outcomes.

In Part Five, the ethic of authenticity and legal culture were examined in greater depth. Legal culture commands adherence to certain behaviours. Authenticity demands genuine expression that may conflict with the external environment. The judiciary confront this dilemma on a continual basis. For some, it is not a problem as they are comfortable within the normative framework of the law. For others, an inner tension exists which leads to the interest in alternate dispute resolution. The differing attitudes can be explained by resort to a developmental model which suggests that as we mature, we become more integrated, meaning that we seek connection with others on all levels, including the expressive and emotional layers of relatedness.
Implications for Further Study

The importance of Ken Wilber's four quadrant model is that it reminds us that there are different types of truth in the world. Truth requires consideration of and integration of subjective truth, objective truth and collective truth. Theories and models which emphasis only one type of truth will be incomplete and fail to achieve a full depth of understanding. I believe that theoretical clarity can be enhanced by recognition of this. Subjectivity and objectivity each have role to play.

The idea that authenticity is an integral part of being human is an ontological argument which is not be capable of empirical verification. It is a philosophic argument about the nature of man and one that runs deep in our current culture. It is an argument founded on reason, designed to show that authenticity does not entail pure subjectivity. Professor Taylor implicitly recognizes that a purely subjective account of authenticity (first quadrant) is insufficient. The necessity for horizons of significance is a bridge between the subjective and objective values (first to third quadrants).

However, the fact that Professor Taylor argues in reason for horizons of significance should not deter us from purely subjective inquiry. Knowledge of the self is the key to understanding the world at large. If we speak of a judge, rather than the judiciary or the legal system, we begin to see the importance of this. This person has a unique identity and history. He acts according to his free will. He may be influenced by others and by his environment but ultimately, his world is his own. This existential reality invites our scrutiny of it as a means of gaining understanding.

The subjective enquiry therefore invites each of us to go within ourselves in search of knowledge. We cannot enter into the experience of another, only our own. In order to understand this "reality" that we find ourselves in, we must come to know both the inner and the outer world. This is the import of the famous dictum "Know thyself". In practical terms this invites us to do several things.

First, theorists should be aware that self development is an integral and important part of the development of any theory or model. As a "mapmaker", the theories and models offered are limited to the depth of consciousness of that individual. Therefore any steps taken to deepen the person's awareness will assist in the articulation of clearer theory. This is an invitation to go beyond mere intellectual enquiry but to attempt integration of all of the realms of human experience - physical, mental, emotional and spiritual.

Second, theorists should be willing to engage in personal narrative and not be intimidated by a culture which demands objectivity and verification. Our personal stories have import and can have greater significance that statistical compilations of data. Just as each person is unique, each person has a unique story to tell. The significance of these stories will be judged by others as we engage in conversation - our mutual horizons of meaning.

In the end, it really all about being you who are and sharing it with others. In a word, to be authentic.

Harold H Wright

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