Habermas' communicative action theory and the adversarial assumption of the civil litigation system: A new perspective for empowering dispute resolution

The adversarial assumption is ever present but seldom discussed as an underlying cause for many of the problems that confront the American legal system. This prospectus examines the adversarial nature of the American legal system as a way to define the problem or "crisis" of the system. I will present a conceptual analysis of the adversarial assumption, a brief history of its historical development and a summary of several symptoms of crisis in the American legal system. Then I will discuss Jurgen Habermas's communicative action theory by examining his underlying validity claims, the operation of universal pragmatics, communicative action, communicative competence, communicative rationality and his lifeworld and systems concepts in relation to societal critique and evolution. Finally, I contend that Habermas's theories challenge the existing supremacy of the adversarial assumption, provide theoretical power to the alternative dispute resolution movement (which currently lacks such theoretical justification) and provide guidance in formulating a new vision of dispute resolution that privileges emancipation, mutual understanding and consensus rather than conflict, dissension and dissolution.