On The Future of Dispute Resolution
by What is the future of dispute resolution? Will “alternative” dispute resolution (ADR) processes dominate the courts system, or will the later "absorb" the former. This essay answers the above by identifying a dialectic between ADR and the law reminiscent of that between law and Equity. The essay revisits the meaning of justice and the role of dispute resolution processes in society. It concludes that only a strong form of legal plurality will lead to real benefit from ADR.
I once wrote that “the future is an old, retired, blind man…who relishes going out on a promenade every now and then. Win his trust… and you can take him anywhere.”[1]That leitmotif inseminates this normative account of the future of dispute resolution (DR). I focus on the tension between public and private DR,[2] in light of the exponential growth of “alternative” dispute resolution (ADR) and the questionable viability of courts for dealing with conflict.[3] Sir Ian Barker formulates the tension as follows: [4]
It is the clear duty of the state to provide a Court system which (a) determines civil disputes between citizens; (b) tries those accused of criminal offences; and (c) adjudicates on disputes between citizen and state. It is an equally well established principle that citizens have the right to have their civil disputes determined by a third party of their choice…
My thesis is threefold: (1) the aforesaid tension emerges from soft legal plurality feeding on constitutional dimensions (of parliamentary sovereignty and the rule of law) where ADR should complement rather than substitute litigation;[5] (2) there is an ongoing dialectic between law and ADR, reminiscent of that with Equity, which inevitably deforms ADR (given ADR is a bottom-up approach that does not integrate into a top-down legal system), and (3) ADR requires strong plurality empowering community-based justice systems; “glocalization” can deliver this empowerment. [6] Inevitably, however, ADR will ossify, and the cycle repeats.[7]
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