Alternative Dispute Resolution and Civil Justice: An Unresolved Relationship
| Published date | 01 May 1993 |
| Date | 01 May 1993 |
| DOI | http://doi.org/10.1111/j.1468-2230.1993.tb02683.x |
Zhe
Modem
Law
Review
[Vol.
56
Alternative Dispute Resolution and Civil Justice:
An Unresolved Relationship
Simon
Roberts
*
When we
try
to identify the practices associated with ‘alternative dispute resolution,’
we at once sense that here is a fugitive label attached to a range of disparate and
contradictory, but entangled, projects.’ Each of them has attracted its own sponsors
at a political level, making it appear that ADR enjoys the support
of
almost everyone
from conservative fundamentalists* to liberal utopian reformers and the modem
left.3 But this political consensus must not distract attention from the diversity
of
interests which is apparent behind it. While ADR offers to sustain disputants who
seek to recover control by disengaging from the attentions of legal specialists, it
also attracts a range of professional groups wanting to secure new areas of work;
and the ensuing competition inevitably extends the range of interventions to which
disputants are potentially subject. At the same time, a contemporary perception of
crisis in the civil justice system has led judges to see ADR as a way to ease
the present weight of judicial busine~s,~ while government is attracted to active
sponsorship as a means of reduced spending on the
court^.^
So
what promises to
be a move to institutionalise
alternative
modes of dispute management, is at the
same time part of the project to renovate litigation, potentially extending govern-
mental provision and control into areas of dispute hitherto firmly in the ‘private’
sphere. These apparently inconsistent demands on ADR, and the seemingly
identical prescription
-
the availability of ‘mediation’
-
with which all are met,
make it imperative to re-examine closely the forms of intervention which ADR might
take, and their potential institutional locations, particularly the proximity to civil
justice.
Whatever content is found behind the label of ‘alternative dispute resolution,’
it has to be seen in the context of a wider conversation about dispute processes.
Lawyer negotiations and the process of litigation, as well as the whole range of
adjudicatory procedures
-
courts, tribunals, arbitration
-
are presently under
re-examination.6
So
interest in ‘alternatives’ comes at a moment when there is a
~~~~
*London School of Economics and Political Science.
I
thank Marian Roberts for helpful comments on
an earlier draft
of
this paper.
The contradictory strands historically present in the alternative dispute resolution movement in North
America are examined in R.L. Abel (ed),
The Politics
of
lnformul
Justice: The American Experience,
Vol
1
(New York: Academic Press,
1982);
‘The Contradictions of Informal Justice’ in Abel; J.S.
Auerbach,
Justice Without
Law?
(New York: Oxford University Press,
1983);
C. Menkel-Meadow,
‘Dispute Resolution: The Periphery Becomes the Core’
(1986) 69
Judicature
300;
C. Menkel-Meadow,
‘Pursuing Settlement in
an
Adversary Culture’
(1991) 19
Fla St L Rev
2.
For assessments which focus
on Britain, see the contributions to R. Matthews (ed),
Informal
Justice
(London: Sage Publications,
1988).
A. Thierer,
Judgement Day: The Case
for
Alternative Dispute Resolution
(London: Adam Smith Institute,
1992).
A. Coote,
H.
Harman and P. Hewitt,
The
Family Way
(London: Institute of Public Policy Research,
1990).
See,
for example, Lord Taylor,
The Judiciary in the
Ws,
the Richard Dimbleby Lecture
1992
(London:
BBC Education,
1993).
A working group within the Lord Chancellor’s Department is currently investigating the potential
of ADR in the civil justice system.
The establishment of the Civil Justice Review in
1985
signalled government’s involvement in this
process.
0
The Modern Law Review Limited
1993
(MLR
56:3,
May). Published by Blackwell
Publishers,
108
Cowley Road, Oxford
OX4
IJF
and
238
Main Street, Cambridge,
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USA.
May
19931
Alternative Dispute Resolution
and
Civil Justice
renewed self-consciousness about processes which are already ‘there.’ At the same
time, alternatives themselves are as much about devoting new energy and attention
to familiar phases in dispute processes preceding the resort to judgment as about
the emergence of novel modes. These interventions converge upon three separate
moments: the private efforts of parties to reach agreement at a point before resorting
to specialist legal help; upon attempts to ‘settle’ somewhere along the path to the
court once ‘litigation’ has formally commenced; and upon what happens in lawyers’
offices. Where novelty is found, it tends to reside: in the development of new
institutional locations for ancient lay forms of intervention, such as the growth of
independent agencies offering mediation in party negotiations; in changing
understandings as to the range of interventions which it might be appropriate for
courts to undertake; and in shifts in established professional conventions as to the
sort of capacities in which lawyers can properly act.
So
discussion of ADR necessarily begins with, and continues to be located around,
the foundational processes of ‘settlement’ and ‘adjudication,’ with their respective
goals in negotiated agreement and imposed decision. Here, despite the analytical
clarity of the distinction between negotiated agreement and imposed decision, and
the considerable gulf which separates them in
terms
of both ‘meaning’ and the location
of power, they cannot be seen as polar spheres in processual terms, as much of
the time they represent different destinations ranged sequentially along a single route,
‘litigati~n.’~ Similarly, although ‘settlement’ in a narrow technical sense is some-
thing lawyers do, many disputes arise in locations remote from legal specialists and
are
attended to in the first instance by the parties themselves. Often, perhaps typically,
a negotiated outcome is explored and the dispute passed to lawyers only when
negotiations have broken down. Even when lawyers do come into the picture, the
passage from ‘party control’ to ‘lawyer management’ of a dispute may be a gradual
process rather than a clearly marked transition; and the same will be true of any
subsequent move towards adjudication.
While the boundaries between the analytically clear-cut spheres of party control,
lawyer management and judicial intervention remain indistinct in practice,
I
argue
here that these spheres do nonetheless represent the locations within which different
strands of ‘alternative’ intervention can be identified. Only by looking separately
at processes supportive of party negotiations, innovative processes on the threshold
of the court and novel forms of intervention by lawyers, can we get a clear view
of what ADR might be and of its relationship to civil justice.
I
ADR
and the Field
of
Party Negotiations
Party negotiations provide one important site around which alternative forms of
intervention are presently developing. An aspiration to party control presupposes
a range of disputes which arise in contexts relatively remote from the attention of
lawyers, away from the public justice system. It assumes that such disputes can
and should be handled at this level through bilateral exchanges between the parties,
pursued within a universe of meaning peculiar to them and concluded in a negotiated
outcome.
So
this aspiration towards a realisation and expansion of ‘private ordering’
quite explicitly involves a retreat back from professional management, an escape
7
M.
Galanter, ‘World
of
Deals: Using Negotiation
to
Teach Legal Process’
(1984)
Jouml
ofLegal
Education
268.
0
The
Modern
Law Review Limited
1993
453
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