Alternative to What? Theories of Litigation, Procedure and Dispute Settlement in Anglo‐American Jurisprudence: Some Neglected Classics
| Author | William Twining |
| Date | 01 May 1993 |
| DOI | http://doi.org/10.1111/j.1468-2230.1993.tb02679.x |
| Published date | 01 May 1993 |
i%e
Modern Law
Review
[Vol.
56
Alternative to What? Theories
of
Litigation, Procedure
and Dispute Settlement in Anglo-American
Jurisprudence: Some Neglected Classics
William
Twining”
Concern with different institutions and methods of dispute settlement has a long
history. But the rapid growth in lawyers’ interest in ‘alternative dispute resolution’
(ADR) is widely perceived to have gathered momentum in the late
1960s
in the
United States.’ In the past twenty years there has indeed been a remarkable growth
in the ‘ADR industry,’ exemplified by the development of organisations, courses
within law schools, continuing legal education and an extensive literature. The main
stimuli appear to have been largely pragmatic and political rather than theoretical
or
‘scientific.’ Three particular concerns seem to have predominated: a feeling on
the part of the American legal establishment that the court system was becoming
intolerably overloaded by an increased volume of civil claims and criminal
prosecutions; a felt need, on the part of professionals and others, for specialised
private fora to serve particular interests (eg commercial arbitration); and a view
that over and above the concomitant increase in congestion, delay and expense,
the system was incapable in more fundamental ways of living up to the ideals of
‘access to justice’ for all.
When a ‘movement’ relating to law develops in the United States, one outcome
is almost invariably a massive, confusing and largely unsystematic body of literature
of
variable quality.* The ADR movement is no exception. In
so
far as any general
patterns can be discussed from the American ADR literature, perhaps three main
strands can be differentiated: first, a body of writing that is concerned with institu-
tional design, in which the central questions relate to the appropriateness
of
different
methods
of
dispute resolution to various types of ‘dispute.’ The pioneering work
of Lon Fuller in the latter phases of his career
is
a prominent e~ample.~ Second,
there has been a series of essentially political debates about the desirability and
necessity of encouraging and developing ADR on a large scale. The diagnosis,
prescriptions and the motives of the enthusiasts were challenged by sceptics of varying
political persuasions: for example, radical critics such as Jerold Auerbach and Richard
Abel, while doubting that ‘justice’ was routinely achieved in litigation, argued that
the alternatives prescribed by advocates of ADR were no more likely to enhance
either access to or delivery of justice in practice and that the net effect of the movement
*Faculty of Laws, University College London.
This paper was presented to an Anglo-Soviet Colloquium in Moscow in June 1990 and is published here
without revision
or
adaptation. Some of the ideas are developed at greater Iength in
W.
Twining,
Refhinking
Evidence (Oxford: Blackwell, 1990) (hereafter RE), esp chs
3,
5 and
11.
eg
S.
Goldberg,
E.
Green and
F.
Sander (eds),
Dispute Resolufion
(Boston: Little Brown, 1985) ch
1.
Discussions of ADR
in
the common law world have hitherto tended
to
be
overshadowed by the American
debates.
cf the American Realist and Law and Literature ‘Movements.’
L.L. Fuller, ‘Mediation
-
Its Forms and Functions’ (1971)
44
S
California L Rev 305; ‘The Forms
and Limits
of
Adjudication’ (1979) 92 Harv L Rev 353.
1
2
3
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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,
380
MA 02142, USA.
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