In the heat of a high-stakes commercial litigation, it’s easy to feel like we are operating within a relatively modern framework. We cite recent precedents and navigate current statutes. But if you think Alternative Dispute Resolution (ADR) is a 20th-century “innovation” designed to lighten judicial workloads, you’re missing the forest for the trees.
History tells a different story. Long before the first American law school opened its doors, societies across the globe recognized that adjudication was a blunt instrument. From the harmony-oriented teachings of Confucius in Ancient China to the quadis of Islamic law, the most enduring civilizations prioritized mediation and conciliation as the primary means of preserving social comity.
The Arbitration That Defined a World
Perhaps the most striking example of ADR’s historical power occurred in 1493. Faced with a looming conflict between two global superpowers—Spain and Portugal—over the “New World,” Pope Alexander VI stepped in as a neutral arbitrator. With no concern for the native peoples, his decision to divide the world one hundred leagues west of the Azores resulted in the Treaty of Tordesillas.
The legacy of that single arbitration is still audible today: it is the reason Brazilians speak Portuguese while the rest of South America speaks Spanish. This wasn’t a “soft” alternative; it was a high-stakes mechanism to avoid a catastrophic war.
Ancient ADR Roots: Beyond the Black Robe
While the Western legal tradition eventually leaned heavily toward the adversarial system, ADR remained the quiet engine of resolution. Whether it was the rabbinical courts of the Jewish faith or the chukai-sha mediators in Japanese business affairs, the goal was always the same: speedy, non-violent resolution. As litigating attorneys, understanding this pedigree changes your perspective. ADR isn’t a “departure” from the law; it is the historical default. When we suggest mediation today, we aren’t avoiding the system—we are tapping into a battle-tested method of resolution that predates our courts by millennia.
Actionable Takeaway: Ancient ADR Roots: The Historical Perspective
When a client or opposing counsel views mediation as a modern “weakness,” remind them:
- Resolution is the goal of civilization. Ancient China, the Renaissance Vatican, and the early United Nations all used ADR to prevent total collapse.
- Preserve the relationship. In many cultures (like Japan), the introducer is a standard business role. Use this to frame ADR as a “normal part of business affairs,” not a litigation failure.
- Value the Neutral. History shows that a specialized mediator (like the quadis) provides more than just a middle ground—they provide a culturally and commercially relevant interpretation of fairness.
The history of resolution is the history of progress. If you’re looking for a mediator who respects the gravity and the history of your dispute, let’s connect. I help attorneys find business-like compromises in even the most entrenched commercial matters.
About the Author: Ken Strongman is a private commercial mediator/arbitrator of complex, high risk litigated cases since 2004. Disputes addressed include business, securities, construction defects, real estate, intellectual property, employment, environment, energy, and trusts & estates. He is also a Mediator and Arbitrator for FINRA, past president of The Mediation Society. and instructor at UC Law San Francisco.
© 2026-27 Ken Strongman. All Rights Reserved. Please do not copy or repost without permission.