On The Future of Dispute Resolution

[6] See e.g. http://www.glocalforum.org; the Glocalist Manifesto calls for empowering local communities—the gateway to strong legal plurality.

[7] Time is cyclical. See e.g. Nancy M. Farriss “Remembering the Future, Anticipating the Past: History, Time, and Cosmology among the Maya of Yucatan” (1987) 29(3) Comparative Studies in Society and History 566. Given it took 400 years for ADR to emerge after Equity, roughly it will take a similar cycle for another form of ADR to emerge, unless social strife accelerates the process.

[8] Cf. Thomas Hobbes Leviathan (1651) Part I, chapter 13.

[9] The same dynamic can also be seen in cyberspace. For example a “cyberrape” that took place in the multi-player computer game called LambdaMOO resulted in ideas similar to those from traditional jurisprudential schools leading to the evolution of a constitutional legal system. For further details refer to the Wikipedia article on LambdaMOO, <http://en.wikipedia.org/wiki/Lambdamoo>  (at 10 October 2009).

[10] Historically, the transition from anarchy to the constitutional state went through detours, but for our purposes, we sprint from the social contract to its modern counterpart, the constitution.

[11] This is Montesquieu’s separation of powers.

[12] The substantive branch has a heterogeneous origin as exemplified by the sedimentary effects of the theological Abrahamic tradition (Lex Talionis) and later through common law. However, what is important for our purposes is that whatever the substantive content is, it was enforced by the state.

[13] Although according to the theory of the original position of John Rawls’s social contract, justice is perceived as fairness, and leads the parties in the original position to equal basic rights and equality of educational and employment opportunities, it was later “decoupled” from social justice. This “decoupling” between social and legal justice was instrumental in the later rise of ADR.

[14] Note the difference between this objective formulation and the subjective (mana-based) formulation found in Maori jurisprudence. Here the institutionalization of dispute resolution resulted in an abstraction of justice. As the size of society grew, the need for abstraction became poignant.

[15] From the perspective of general systems theory this “disorder” is explained as an increase in entropy (the potential of disorder over time) in any isolated system. Following Lehmann, law is an autopoietic system that is self-producing, self-reproducing, and self-referential. Given that the legal system is a superstructure, it innovated only through Schumpeterian punctured equilibrium—it takes the legal system time to adjust to societal expectations. See e.g. Baxter “Autopoiesis and the ‘Relative Autonomy’ of Law” (1998) 19 Cardozo L. Rev. 1987, 2003.

[16] The direct costs included exorbitant legal fees and disbursements. Indirect costs include the opportunity cost lost due to being tied up in prolonged hearings, as well as the psychological trauma of having to go through an adversarial process, but more importantly the alienation of having to engage a highly abstracted process that can hardly provide for individualised justice. See e.g. K. Mackie, D. Miles, W. Marsh & T Allen The ADR Practice Guide (Tottel Publishing Limited, United Kingdom, 2nd ed, 2000) 3.

[17] See e.g. W. Lucy “Abstraction and the Rule of Law” (2009) 29(3) Oxford Journal of Legal Studies 481–509.

[18] M. Fulton Commercial Alternative Dispute Resolution (Law Book Co, Sydney, 1989) 49.

[19] Extract from the Black Book 1820, cited in W. Estey, “The Changing Role of the Judiciary” (1985) 59 Law Inst. J. 1071 at 1076, cited in M. Fulton Commercial Alternative Dispute Resolution (Law Book Co, Sydney, 1989) 40. Of course, Karl Marx saw “justice” as little more than a bourgeois ideological construct designed to justify exploitation (see e.g. Wood, A. (2004) Karl Marx (New York: Routledge). In this essay both constructions are acknowledged. The first being referred to as social justice, while the second as legal justice. The dichotomy was well argued by Sir Laurence Street in his AUT lecture on mediation on 13 October 2009.

[20] Valerie A. Sanchez “Back to the Future of ADR: Negotiating Justice and Human Needs“(2003) 18 Ohio St. J. on Disp. Resol. 669, 677.

[21] For example, Professor Owen Fiss was against the institutionalization of ADR and proposed that ADR settlement came at the expense of justice—that it amounted to trading justice for peace. (Fiss is of course referring to legal justice) Fiss also argued that “ADR implicitly asks us to assume a rough equality between the contending parties”, although we now know that equal power is not necessary for a fair outcome in ADR; cf. B. Rogers “Power in Mediation” (2004) 6 ADR Bulletin 169; Owen M. Fiss “Against Settlement” (1984) 93 Yale LJ 1072, 1073, 1085. From what transpired in the third period of ADR it is evident that while these concerns might have some merit, they were of little weight. Although from our experience with the results of institutionalization, difficulties of merging ADR into the legal system became evident.

[22] While Fullerian “polycentric” conflicts will remain the domain of state intervention, if not necessarily through the courts system.

[23] K Mackie et al, supra 4.

[24] D. Clapshaw & D. Hurley “Choosing Mediation and Mediator Selection” 486 LawTalk 55.

[25] Barker, Sir “Arbitration, mediation and the Courts” (2004) NZLJ 489.

[26] NZLC PP28, cited in C Hickey “The Criminal Justice System—room for alternative dispute resolution” (October 1997) LawTalk 486, 26.

[27] This is exactly what Owen Fiss warned of.

[28] See http://www.hdc.org.nz.

[29] In his Auckland University of Technology (AUT) lecture on 15 October 2009, Howard Zehr identified a number of these problems, salient among which is victims’ subscription to the myth of achieving security through punishment.  Another serious problem is the insistence of legislative instruments on offering RJ only as an alternative (auxiliary) to litigation. This is evident in the Sentencing Act 2002 section 25 where the court enables the restorative justice process rather than abide by it!

[30] Frank Sanders “Varieties of Dispute Processes” in The Pound Conference: Perspectives on Justice in the Future (Leo Levin & Russell Wheeler eds., 1979) 84.

[31] Jeffrey Scott Wolfe “Across the Ripple of Time: The Future of Alternative (or, Is It

‘Appropriate?’)” (2001) 36 Tulsa L.J. 785, 790.

[32] Lest the reader carriers the analogy beyond its intended weight, it is conceded that there are fundamental differences between Equity and ADR. Nonetheless, both came about to address the failures of the legal system of their time.

[33] Thomas O Main “ADR: The New Equity” (2005) 74 University of Cincinnati L. Rev. 329, 330.

[34] See e.g. the Centre for Effective Dispute Resolution Code of Conduct for Mediators, available at www.cedr.com; and the AMINZ Code of Ethics available at www.aminz.org.nz

[35] Barker, Sir Ian “Arbitration, mediation and the Courts” (2004) NZLJ 489.

[36] See e.g. the Centre for Effective Dispute Resolution model settlement agreement and Tomlin order, available at www.cedr.com .

[37] See the discussion of this protection in the employment context in Just Hotel Ltd v Jesudhass [2007] NZCA 582 where the Court of Appeal considered that s 148 of the Employment Relations Act 2000 protected the communication unless it was created or made independently of the mediation (paras 31-33, 37 and 38).

[38] See Oswald Spengler The Decline of the West (trans. C. Atkinson, New York: Knopf, 1926).

[39] Margaret Davies “Ethos of Pluralism” (2005) 27 Sydney L. Rev. 87, 103.

[40] See Frank Sanders “Perspectives on Justice” in the Pound Conference. National Conference on the Causes of Popular Dissatisfaction with the Administration of Justice (1976 Saint Paul, Minn.) 65, 85.

[41] It is essential to realise that the “voluntary” nature of DR is transient. Over time, whether under a soft or hard plurality, ADR will become the new DR standard and eventually reincarnate into a binding process. This we have seen earlier with Equity, but also within the ongoing dialectic between law and ADR, e.g. as in the Blenheim Lifestyles case (supra).

[42] See Martin Loughlin Legality and Locality (Clarendon Press, 1996).

[43] Rex S. Heinke “The Dangers of Monopolistic Thinking” (2001) 4 Los Angeles Lawyer 10, 11. Cited in Jeffrey Scott Wolfe “Across the Ripple of Time: The Future of Alternative (or, Is It ‘Appropriate?’)” (2001) 36 Tulsa L.J. 785, 794.