Introduction
Law is a discipline that is highly resistant to change. While
modern practitioners of medicine, physics, sociology and philosophy
hold understandings vastly different from those held by their
ancient counterparts, it is not difficult to imagine that jurists
from ancient Rome, for example, would probably be able to function
quite efficiently in a modern legal chambers, provided, merely, that
they were able to bring themselves up to date on current
legislation, cases and procedure (Cohn 1967:64). While this is not
necessarily remarkable in itself - the functions of family life, for
example, would have few dissimilarities either - nevertheless what
can be seen as the common link is the tenacity with which both the
ancient and modern legal systems hold on to certain tenets,
practices and procedures.
One such tenet in the common law system is that justice is more
likely to be done (indeed, to be seen to be done) when one is able
to have one’s day in court. Increasingly, this view has been
questioned and challenged. Alternatives to adversarial formality
have emerged, for example, systems and practices pursuing, amongst
other things, alternative dispute resolution or ‘ADR’, family
group conferencing, interest-based mediation, court-ordered
conciliation conferences, industrial arbitration, transformative
justice, restorative justice, diversionary courts and therapeutic
jurisprudence. Each of these alternatives came about as more and
more people began to recognise the limitations of any approach that
brought parties into a highly formalised legal battle, one against
the other, where there could be but one winner (eg. French 1991,
Ingleby 1991). Legal and non-legal observers alike have been
enormously productive in seeking out and spelling out ways and means
to address and manage legal conflicts and to solve legal problems in
ways that are enduring and acceptable to the parties concerned.
The reasons for this search for alternatives are easy to glean.
In adversarial systems, criminal and civil alike, an adjudicator (a
judge or jury) considers the arguments from both sides, following
examination and cross-examination and re-examination (and legal
argument on the admissibility of evidence) and imposes a judgment.
The dispute is thereby declared ‘resolved’. This resolution,
however, comes at great cost, not only in terms of the legal
expenses imposed upon the litigants (and the community, too, as
measured in court time, judicial costs etc), but in the harm done to
the combatants as well, financially and psychologically. The
conflict never really goes away. In many ways, commentators allege,
it is merely exacerbated (e.g. McDonald and Moore 2001). In
contrast, non-adversarial procedures and informal practices are said
to be more easily accessible and less daunting to those who wish to
participate in the legal process but whose skills, confidence or
resources are lacking.
Yet despite all of the evidence of the spiralling costs and
enduring bitterness launched and fomented by the litigious process,
there is little evidence that its appeal, generally, is shrinking.
That is not to say that alternatives are being frustrated by this
resilience. Certainly there are officially mandated (‘court-annexed’)
conciliation conferences readily ordered in commercial cases, family
law disputes and in the industrial and employment law realms. It is
also the fact, of course, that most legal matters, certainly
commercial cases, are settled ‘out of court’. Yet there is an
unyielding view that alternatives to litigation are still very much
the ‘alternative’. The instituting of legal proceedings, and,
indeed, the making of threats of litigation, are fundamental to the
processes associated with civil justice.
The resilience of adversarial approaches
There are a number of possible reasons why litigation endures as
the cornerstone of the civil legal system notwithstanding the great
strides made by law reform commissioners, community legal services
and governments alike in seeking alternatives. These reasons are
explored briefly in the discussion that follows.
For the sake of the simplification of the arguments, three
somewhat artificial notions need to be constructed. Firstly,
litigation and its alternatives are set out as dichotomous and
mutually exclusive entities. This is a little misleading, for there
are a number of permutations in relation to legal outcomes that
cannot be classified as one or the other, and, in many cases, the
bringing of proceedings is a necessary forerunner to court-annexed
mediation or conciliation process. Nevertheless, for the purpose of
exploring the question posed (above), there is an assumption that a
clear dichotomy does exist. Secondly, formal adjudications and the
adversarial system are linked irretrievably. This is not always the
case, but for the purposes of this explanation, there is an
assumption that the process of examination and cross-examination is
a precondition to a formal, legal adjudication. Thirdly, while there
is court-annexed ADR, and options outside of the formal system, no
distinction between them is made for the purposes of this paper.
The reasons for the survival and pre-eminence of litigious and
adversarial practices are many and varied.
The certainty of a judicial pronouncement has deep appeal
There is great power in the symbolic function of a judicial
pronouncement at the end of a formal hearing rather than an outcome
that has been drawn from a mediated exercise, where parties have
been led to reach a compromise that may be seen to be unsatisfactory
to both. Many people prefer to live in a world of certainty even
when it is said or suspected that such certainty is contrived, in
much the same way as some people, in times of trouble, often adopt
theological precepts they may have previously abandoned. John Locke
stated it thus:
“Freedom of Men under Government, is to have a standing Rule to
live by, common to every one of that Society, and made by the
Legislative Power erected in it; A Liberty to follow my own Will in
all things, where the rule prescribes not; and not to be subject to
the inconstant, uncertain, unknown, Arbitrary Will of another Man”
(sic). (quoted in Kennedy 1973:370)
There is a strongly held view that legal arguments and formal
pronouncements are required in order to develop the law, and in
order to give certainty to legal relationships. This is the basis of
the doctrine of precedent. Consider the reasoning of the English
Court of Appeal in Rickards v Rickards [1990] FCR 409:
“The importance of the rule of stare decisis in relation
to the Court of Appeal’s own decisions can hardly be overstated.
We now sometimes sit in eight divisions and, in the absence of such
a rule, the law would quickly become wholly uncertain. …[Certainty
in relation to substantive law is usually to be preferred to
correctness, since this at least enables the public to order their
affairs with confidence” (per Lord Donaldson of Lymington, MR, at
416-7).
In other words, if the law is simply what the parties care to say
it is, or what a compromise says it may be, what is a legal advocate
to argue? What is a judge to justify in any later decision? The
pre-eminence of formal pronouncements in legal proceedings will not
lightly be set adrift. This may explain the attitude of some
litigants who will press on through litigation despite the advice of
their counsel and regardless of the costs involved.
The visibility of, and consistency attached to, an open court
hearing is attractive
Moves away from open court litigation take parties into private
deliberations and outcomes that are usually shielded from public
scrutiny. Mediated outcomes, for example, those emanating from
family group conferences for juvenile offences, and, to a lesser
extent, civil settlements where confidentiality is imposed upon the
disclosure of the terms of the settlement, suffer from an opaqueness
that concerns some commentators (for example, Hossain and Malbon
1998). In other words, alternative dispute resolution outcomes and
decisions that are unlikely to be publicly viewed, and even less
likely to be debated, may be treated with suspicion. The fairness or
otherwise of the final outcome for the parties concerned or the
public in general is not open for public scrutiny.
Moreover, there is an expectation in a democratic society that
the law will be applied consistently. The New Zealand Court of
Appeal recently overruled a restorative justice family group
conference outcome determining that it was too lenient in the
punishment it awarded, and arguing that the state had an abiding
interest in equalising punishment across offences (Mason 2000,
quoted in Bayley 2001:220). There is a perception that alternatives
to the litigious process may allow parties to license an ad hoc
intervener to determine a dispute between them according to an “arbitrary
and inherently indeterminate view of the outcome” (Kennedy
1973:376). Commentators have noticed that unsatisfactory
inconsistencies in the application of administrative law penalty
options are becoming more common (Tomaino 2000:188ff; Grabosky and
Braithwaite 1986:163ff).
Litigation serves the purposes of the legal profession
Legal commentator Maureen Cain points to the ‘claustrophobic
structure’ of the legal profession as one of the reasons why the
ideology upon which the profession operates remains largely
unexamined.
“Maintenance of the unity of legal thought is contingent upon
[judges and lawyers] being impervious to the various day to day
rationalities of other sections of the population.” (Cain
1976:246)
That is, says Cain, there is power in the mystery and esoterism
of the litigious process, and in its language, the dress of counsel
and the formal courtroom practices (Sarre 1994:16-20). Judges,
generally, are not averse to perpetuating that power and esoterism.
They are unlikely to renounce the deference the public accords to
their judgments (Elson 1989:363). Lawyers may act likewise.
“The good lawyer, then, is the one who can demonstrate to
himself and to others that he does, in fact, know more than other
lawyers and, especially, more than the ordinary, well-educated
layman about things legal. Such a view inevitably breeds a kind of
exclusivity and separatism in relationships between lawyers and the
public. It is no accident that prestige and authority within the
legal profession increase with one’s distance from the general
community.” (sic) (Fraser 1977:70)
It may be seen to be a threat to the legal mystique that private,
non litigious alternatives give power back to the parties, an idea
explored in a now famous essay by Danish criminologist Nils Christie
and expanded in the concept of restorative justice (e.g. Bayley
2001). Although Christie was referring to victims’ rights and
returning criminal conflicts to their ‘rightful’ owners, he
foreshadowed the possibilities of an evolution of lay-people’s
sense of power over the legal process:
“[The current system is] a loss of opportunities for a
continuous discussion of what represents the law of the
land...Lawyers are... trained into agreement on what is relevant in
a case. But that means a trained incapacity in letting the
parties decide what they think is relevant (emphasis in the
original) (Christie 1977:8).
To this extent, it is argued that alternatives to the adversary
system threaten to remove power from those with whom it has resided
for centuries.
“[The law’s] guardians are a priesthood, who to greater or
lesser degrees cling together in mutual self-discipline encouraging
or compelling each other to understand, apply and preserve the
orthodoxy. Of course, the whole is really a writhing mass of
movement, change and conflict even though, from a distance, it may
appear to some to hang together in a sort of seamless web. (Mason
1990:80)
The adversarial system is entrenched in the current style of
legal education
There is little doubt that the way in which law is taught and the
curricula that are assembled entrench the view that legal judgments
(as opposed to customized outcomes arrived out through parties’
discussions) are a preferred method for reaching ‘correct’
results.
“Wherever [a] traditional style of legal training is offered,
social problems tend to be reduced to a series of disconnected
disputes between anonymous and interchangeable individuals.
Hypothetical cases are manufactured for students who are expected to
isolate the ‘facts’ and then apply the relevant law. The student’s
task is to arrive at the legally ‘correct’ solution by reasoning
in an intelligent and objective manner. … For much of the time,
the required task is skilfully to piece together small sections of
the [jigsaw] puzzle, without ever having to appreciate the entire
composite legal picture and its implications for society. Thus is
maintained the impression of a fair, dispassionate and objective
treatment of all parties who come before the law.” (Naffine
1990:33)
This is not to suggest that no alternatives find their way into
the classrooms or that legal educators are not aware of the
difficulties attached to a litigious approach to legal
problem-solving. Indeed, there is now a concerted effort for
mediation training in law schools and continuing legal education
curricula. There is a tendency, nevertheless, for these subjects to
be peripheral to ‘real’ law. That is, practitioners come away
from their education with the belief that the law consists of set
principles and that the profession is the guardian and preferred
interpreter of those principles.
“The most obvious failing of the traditional law school
curriculum is that its … concentration on legal doctrine as an
objectively rational subject of discourse results in the neglect of
a multitude of competencies that mark the excellent practitioner.”
(Elson 1989:345-6)
A wholesale change in the style and content of legal education
cannot occur overnight, of course. It would be, however, needed if
there were to be a greater exploration of the possibilities offered
by alternative approaches.
Law reformers accept the centrality of the adversarial/litigious
approach
It is the often case that reformers review alternatives to
litigation by referring to them as ‘exceptional’ and thus the
perceived immutability of the prevailing assumption remains intact.
For example, Ericson and Baranek use the term ‘tinkering’ to
describe the manner in which reformers toy with existing structures
rather than challenge the more enduring underpinning assumptions, a
process which “serves not as change but as an excuse for not
changing” (1982:225). Their work examines the process by which
reforms may become used as matters of administrative convenience,
and point to the manner in which policy-makers and legislative
draftspersons often collaborate in mystifying what the reform is
really intended to do.
The adversarial system may assist those who challenge authority
and power
There is, furthermore, an argument that the adversarial approach
can return power to the hands of the otherwise powerless
(Handler 1978:232-3). It is possible that an open court judgment,
with fixed procedural rules, may act against the threat of arbitrary
action by the more powerful elements of society. Do not clear and
authoritative legal rules and judgments, pronounced by an authority
above reproach and removed from political interference, provide
protection against injustice, for example, the availability of the
writ of habeas corpus? Where matters can be dispensed with in
a manner that may not require formal rules, for example, those dealt
with by administrative action or on a private settlement, there may
be the suspicion that powerful elements were at work in reaching a
settlement based more upon convenience than justice (Kennedy
1973:393; Sarre 2001). In other words, a mediated response may be
perceived as favouring the interests of the powerful. There is an
argument that only through the litigious process can power
imbalances be overcome, assuming equal access to resources. Only in
a litigious setting will rules of evidence and procedure be in place
to ensure fairness and the perception of fairness.
One of the guiding principles of mediated legal processes is that
formal rules are not usually followed. The closing off of the
possibility of formal legal rules, however, may lead to a perception
that there is no impartial ‘umpire’. Even the participants in
the most simple of neighbourhood meetings may need to refer to
Roberts Rules of Order to ensure that a meeting is conducted fairly.
In other words, despite a society’s best endeavours towards
adopting more localised and less formalised processes and outcomes,
legal ‘centralism’ is hard to break when people are aspiring to
fairness (Galanter 1979, cited in Bayley 2001:220).
The adversarial system is culturally determining and determined
There is, finally, an argument, albeit from one particular paper,
that the rate at which people choose adversarial, litigious
approaches can serve as an indicator of legal culture. Blankenburg
(1997) compared civil litigation rates in Austria, Belgium and West
Germany (the more litigious) with Italy, Denmark, the Netherlands
and Japan (less litigious). He then conducted a comparison of the
otherwise seemingly culturally similar nations, the Netherlands and
West Germany that allowed him to conclude that ‘legal culture’
is as much the product of the system as it is its generator and does
not exist outside of legal institutions. David Nelken, the editor of
the volume in which this view appears wrote critically of this
argument, which appears to confuse culture and structure.
Conclusion
Despite the criticisms of the litigious process, and its not
insubstantial role in exacerbating conflicts rather than managing
them, it remains as one of the cornerstones of the civil justice
system, if not the criminal justice system in Australia as well. The
faith that we place in lawyers as suitable combatants for our
battles and judges as paragons of objectivity remains largely
unshaken. For the reasons outlined above, alternatives that one
might have thought should have or could have become mainstream have
remained alternative. Whether that is because of the
perceived value of certainty, the need for objectivity and openness
and so forth, or whether it is simply because there is, as yet, less
faith in the process of dispute resolution by those who find
themselves in conflict remains a moot point. At the very least,
there will need to be some attention given to the above issues if
there is to be a greater reliance upon, and confidence in,
alternative procedures and practices, alternatives that have
promised much for some time but which have failed to make the sort
of impact that their proponents may have hoped for or predicted in
the past.
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