Alternative dispute resolution and civil justice: a relationship resolved?

The rule of law is predicated on the rights of citizens to choose their dispute resolution forum and if they so desire, seek rights enforcement solutions through readily available forums of access to justice or through a more pluralistic range of Alternative Dispute Resolution (ADR) processes, should the nature of the dispute be suitable for it. One of the philosophical tenets of dispute resolution is the idea that a legal dispute can broadly speaking be resolved in one of two ways. Through either the parties, whether or not lawyer assisted, negotiating settlements (including those resulting from mediation) or having a third party decide the outcome be that an Arbitrator, Early Neutral Evaluator or Judge imposing a decision.

This paper reflects on the development of ADR’s relationship to civil justice and has been inspired by the academic discourse presented in a special issue of the Modern Law Review published in May 1993. That particular special issue focused on civil justice and ADR, the majority of which had its origin (with one exception) in papers prepared for the 1992 annual W.G. Hart Workshop at the Institute of Advanced Legal Studies in London. It is the late Simon Roberts’ article appearing in that special issue, written at a time when there was an acknowledged perception of crisis in the civil justice system in which he claimed had led judges to view ADR as a way to ease the burden of judicial business, which particularly attracted attention.

It is not intended that this paper be a response to Roberts, but some twenty-five or so years on, in light of subsequent civil justice and ADR reviews, the timing is perhaps appropriate to reassess the relationship between ADR and civil justice and also to consider if a civil justice crisis perception persists.