Alternative Dispute Resolution and Civil Justice: An Unresolved Relationship

Abstract

When we try to identify the practices associated with 'alternative dispute resolution,' we at once sense that here is a fugitive label attached to a range of disparate and contradictory, but entangled, projects. Each of them has attracted its own sponsors at a political level, making it appear that ADR enjoys the support of almost everyone from conservative fundamentalists2 to liberal utopian reformers and the modern left.3 But this political consensus must not distract attention from the diversity of interests which is apparent behind it. While ADR offers to sustain disputants who seek to recover control by disengaging from the attentions of legal specialists, it also attracts a range of professional groups wanting to secure new areas of work; and the ensuing competition inevitably extends the range of interventions to which disputants are potentially subject. At the same time, a contemporary perception of crisis in the civil justice system has led judges to see ADR as a way to ease the present weight of judicial business,4 while government is attracted to active sponsorship as a means of reduced spending on the courts.5 So what promises to be a move to institutionalise alternative modes of dispute management, is at the same time part of the project to renovate litigation, potentially extending governmental provision and control into areas of dispute hitherto firmly in the 'private' sphere. These apparently inconsistent demands on ADR, and the seemingly identical prescription the availability of 'mediation' with which all are met, make it imperative to re-examine closely the forms of intervention which ADR might take, and their potential institutional locations, particularly the proximity to civil justice. Whatever content is found behind the label of 'alternative dispute resolution,' it has to be seen in the context of a wider conversation about dispute processes. Lawyer negotiations and the process of litigation, as well as the whole range of adjudicatory procedures courts, tribunals, arbitration are presently under re-examination.6 So interest in 'alternatives' comes at a moment when there is a