Dispute Resolution: Civil Justice and its Alternatives
| Published date | 01 May 1993 |
| Author | Simon Roberts,Cyril Glasser |
| Date | 01 May 1993 |
| DOI | http://doi.org/10.1111/j.1468-2230.1993.tb02672.x |
THE
MODERN LAW REVIEW
Volume
56
May
1993
No.
3
Dispute Resolution:
Civil Justice and its Alternatives
Introduction
Cyril
Glasser and
Simon
Roberts
In proposing that civil procedure and alternative dispute resolution should be discussed
together at the
1992
W
G
Hart Workshop, Terence Daintith let the participants loose
on a broad field of dispute processes. But at the same time he identified some closely
interwoven areas of practice whose relationships had come to be obscured by the
development of separate, parallel conversations.
For civil procedure, that array of tools and markers scattered along the path to
trial and judgment, the last
two
decades have brought major changes to the framework
for the conduct of litigation across the whole range of civil courts in England. Here
and there particularly notable developments stand out
-
the new interlocutory orders
established in the High Court in support of plaintiffs in cases of commercial fraud,
the introduction of the exchange
of
witness statements, and the small claims
procedures introduced in the county courts from
1972
and consolidated following
the Civil Justice Review. Overall the innovations have been such as to raise the
question as to whether it is possible to make out a common core of ‘civil procedure’
at all. But against a shifting, irregular background of procedural innovation two
general, related, trends are noticeable. First, the
triul
has receded, becoming a distant
.
and unlikely prospect, as the focus of attention has shifted to pre-trial activity and
.
disclosure, and ‘settlement’ has become more attractive. At the same time, the
court
itself has become more involved
in
pre-trial preparations both as a means of expediting
progress towards the trial and in orchestrating settlement.
Concurrently, there has been since the
1970s
a growing number of moves to
institutionalise ‘alternatives’ to litigation. Here important examples include: the
pioneering of mediation in family disputes by voluntary agencies following proposals
of the Finer Committee in
1974;
the importation from North America
of
community
and neighbourhood mediation schemes; and similar adaptation of ‘alternative dispute
resolution’ procedures (‘ADR’) in the field of commercial disputes. Lawyers did
not generally take a leading part in these initiatives (although there were exceptions),
and were at first cautious and non-committal towards them; but latterly they have
shown an increasingly active interest, confirmed in the sponsorship of major reports
0
The Modem Law Review Limited
1993
277
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