ALTERNATIVES TO LITIGATION: FACTORS IN CHOOSING*
| Date | 01 July 1989 |
| DOI | http://doi.org/10.1111/j.1468-2230.1989.tb02610.x |
| Published date | 01 July 1989 |
| Author | Jack Effron |
ALTERNATIVES TO LITIGATION: FACTORS IN
CHOOSING*
THE
thesis
of
this paper is that law in the twenty first century can and
should embrace both litigation and its alternatives as equally avail-
able options for people in disputes. The time has come to break the
monopoly
of
influence which the state’s statutes and the state’s courts
have in the practice and teaching
of
law.
Legal sociologists and legal anthropologists have been demonstrat-
ing for decades that the “law” which law students study and most law-
yers practice is only a small part
of
the law which exists in society.’
Law Schools may have conceded the odd course or part
of
a course to
alternatives to the formal courts. Lawyers in a growing number
of
areas may have been forced increasingly to deal with arbitration,
mediation negotiation and other forms of dispute resolution in their
practices.’Yet most lawyers still think
of
themselves as specialists in
adjudication and
of
alternatives to adjudication as processes outside
the law, which do not concern legal practice or teaching.
The adjudicative bias of today’s legal profession is not only a fan-
tasy: it harms dispute resolution. Litigation as used in many tra-
ditional areas
of
law is too expensive, divisive, inaccessible or
ineffe~tive,~ in part because it is used in cases where adjudication
is
not appropriate to the dispute and parties involved. Alternatives to
litigation are too often
so
regulated or perverted by litigation-minded
lawyers, courts and legislators that they become alternative methods
of
litigation rather than alternatives
to
litigati~n.~ Yet alternatives to
*
This is a revised version
of
a paper given at the ESRC postgraduate student confer-
ence at Sheffield on April
25, 1986.
The research for this paper was done as part
of
a
PhD in comparative labour law at University College, University
of
London.
I
am
indebted to my supervisor, Professor B. Hepple, as well as
to
Professor L.
S.
Sealy.
The views expressed are,
of
course, totally the responsibility
of
the author.
Beginning with Ehrlich’s
Fundamenfa1 Principles
of
fhe Sociology
of
Law
(1912).
Master Jacob provides a poignant illustration in modern English experience with the
observation that only
0.5%-0.6%
of
the writs in the Queen’s Bench
go
to trial, in Cap-
pelletti and Garth, eds.
Access foJusfice
(1978)
Vol
I,
Book
1
p.
429
(table
I).
*
Conciliation has been a major aspect in the settlement
of
labour disputes in Eng-
land at least since the enactment of the Conciliation Act
1896.
Commercial arbitration
has an even longer history and is a major aspect
of
English commercial law. Goode
states the common knowledge in
Commercial
Law
(1982)
at p.
971:
“Lawyers prefer
litigation, businessmen prefer arbitration.” Increasingly, family practice involves con-
ciliation in some form. See,
e.g.
Eekelaar,
Family LawandSocialPolicy
(1984)
p.
57
et
se
‘See.
e.g.
Ison, “Small Claims”
(1972) 35
M.L.R.
18;
Eekelaar, “The Place
of
Div-
orce In Family Law’s New Role”
(1975)
38
M.L.R.
241,249-250
and Cappelletti and
Garth,
op.
cif.,
note
1,
generally.
Parris’s, criticisms
of
the role
of
the courts in commercial arbitration throughout
Arbifration
(1983)
make this point, as do the critics of
‘‘legalism”
in the Industrial Tri-
bunals,
e.g.
Rideout, “Unfair Dismissal-Tribunal
Or
Arbitration”
(1986) 15
I.L.J.
84.
Recently ACAS has expressed concern over legalisation of its individual concili-
ation procedures in its
1984
Annual Report
p.
65
and in its
1985
Annual Report
p.
83.
480
JULY
19891
ALTERNATIVES
TO
LITIGATION
481
litigation, when used in inappropriate cases, can deny parties needed
legal protection or frustrate beneficial public policie~.~ In place of the
pretended chasm between
“legal”
and
“non-legal”
means
of
dispute
resolution, we need a unified theory of dispute resolution which
states the sorts of disputes in which each alternative method of resolv-
ing disputes is most effective.
On the basis
of
a unified theory of dispute resolution, law could be
understood and practised as what it is: the process of resolving dis-
putes through the intervention of neutrals, regardless of which
of
the
generally accepted forms of intervention the neutrals use. Then, with
a more honest concept of law, free of adjudication’s monomania,
solicitors and legal researchers could think
of
themselves as dispute
resolution artists, prepared to work in any
medium
of their art.
To
build a unified theory of dispute resolution, we need to begin to
draw some general conclusions from the wealth of experience of
western industrial societies with various forms of dispute resolution.
From the conclusions of various writers, argued against one another
and tested in various dispute processes, a consensus will emerge on
the necessary conditions of dispute for effective use of each method
of resolution. This paper will present the arguments for one set
of
conclusions, drawn from a study of various examples of dispute reso-
lution in Britain and America.
THE
ALTERNATIVES
There are many potential means
of
resolving a dispute, ranging in
formality from a court process to physical violence. Law concerns
itself with all of these means but not all means of dispute resolution
are
“legal”
in form or in acceptability. One
of
the tasks of a unified
theory of dispute resolution will be to work the various alternatives
means
of
dispute resolution into a consistent scheme. Sometimes
physical violence is an appropriate means to resolve a dispute, other
times not.6 Sometimes a dispute can be resolved by negotiation
among the parties alone, other times not. Sometimes a dispute can be
resolved by what Felsteiner calls
voidance"^
(i.
e.
by the parties
ceasing relations), other times not. Sometimes a party will make an
alliance with a third-party, other times not.
This paper will focus upon the means of dispute resolution which is
normally referred
to
by those speaking of
“law”
or
“dispute
resolu-
tion”:
action by a third-party neutral with a view to end the dispute.
See,
e.g.
Auerbach,
Justice Without
Law?
(1983) p. 145 and Hunter, “Economic
Issues
In
Conciliation And Arbitration” (1977) 15 B.J.I.R. 226,233-4.
e.g.
Criminal law recognises that violence may be acceptable in cases
of
defence
of
self or others or
on
provocation: Card, Cross and Jones
Introduction
to
Criminal
Law
(1984) pp. 167-176 and pp. 436-439 while international law recognises a right
of
states
to
go
to
war in certain circumstances: Lauterpacht, (ed.)
Oppenheim’s International
’
“Influences
of
Social Organization
on
Dispute Processing” (1974) 9 Law and SOC.
Rev. 63,69. See also Hirschmann,
Exif, Voice AndLoyalfy
(1970)
on
“exit”
(Chap.
2).
Law
(1960) pp. 557-558.
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