Mediation in the Lawyers' Embrace
| DOI | http://doi.org/10.1111/j.1468-2230.1992.tb01874.x |
| Date | 01 March 1992 |
| Published date | 01 March 1992 |
| Author | Simon Roberts |
The
Modern
Law
Review
[Vol.
5s
Government strategy, dominated by steering the economy, involves the promotion
of what Habermas terms ‘civil privatism’: rather than aiming at the normative
justification of political arrangements, the state upholds its legitimacy by at once
depoliticising the public sphere and simultaneously seeking to ensure that its citizens’
expectations of private, essentially material, rewards are met.86 Why subjects
should consent to these arrangements when the rewards are not generated hardly
figures
in
the Government’s account at
REPORTS
Mediation
in
the
Lawyers’
Embrace
Simon
Roberts
*
Over the last couple of decades, a very loose bundle of ideas and practices has come
to be assembled under the broad label of ‘alternative dispute resolution.’ But there
has, from the start, appeared to
be
one central ambiguity: was this really a movement
to
institutionalise
alternative
modes of dispute management, and hence a move away
from courts and specialist legal personnel; or was
it
part of a project to renovate
litigation, to refurbish adjudication? Various strands lead off
in
apparently opposite
directions.
For
example,
in
England, autonomous agencies of ‘family conciliation’
have been offering facilitatory help with joint decision making, while parallel, experi-
mental schemes
within
the registries of divorce county courts have also been going
forward under the banner of conciliation.
A
similar picture is observable
in
North
America, where some forms of ADR claim to offer increased party control and
escape from legal institutions, while others, like the ‘Multi-door Courthouse’
experiments, have the explicit aim of ‘integrating alternative dispute resolution into
the public justice system.’’
Now, suddenly, two converging developments promise to strengthen the
link
between ADR and attempts to refurbish civil litigation. First, the Lord Chancellor’s
Department is currently investigating the potential of ADR
in
the civil justice system.
Second, both Bar and Law Society, after a period of caution, have begun to show
an active, proprietorial interest
in
ADR. The Law Society’s Courts and Legal Services
Committee set up a Working Group on ADR
in
January
199
1
and approved a Report
for publication
in
July.?
In
March, the General Council of the Bar established a
Committee on Alternative Dispute Resolution under the chairmanship of Lord Justice
86
87
*London School
of
ILonomics and Political Science.
See
especially
Legitimation Crisis,
op
cit
n
51,
and
nte
Theory
of
Communicative Action
Vol
2,
op
cit
n
51.
On this point, see
J.
Dunn, ‘Political Obligation’ in Held.
rip
cit
n 84.
F.E.A. Sander, ‘Alternative Dispute Resolution in the United States: An Overview‘
in
Justice
fr,r
(I
Generution,
Papers
of
the 1985 London Meeting
of
the American Bar Association (St Paul. Minnesota:
Wcst Publishing Company. 1985).
Altcrnutive
Dispute
Resolution.
A
Report
Prepurcd
by
Henry
Brown
for
the
Courts
und
Lr.gtrl
Services
Cownit/w.
Law Society. Legal Practice Directorate,
July
1991.
I
2
258
nit,
Modern
Lcru,
Review
55:2 March 1992 0026-7961
To continue reading
Request your trial