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.
Moreover, the current demarcation between courts and ADR is likely to be short-lived given the prevailing monism. For example, Davies asserts that “legal centralism fails to recognise the ways in which formal law is legitimately circumvented by informal dispute resolution practices, such as some forms of alternate dispute resolution…”[39] At an extreme, such antagonism to ADR comes camouflaged in cries of denial of due process (in the field of criminal justice), in reminders of the constitutional requirements of the jury-trial, and in assertions of the indispensible role of the courts in protecting rights and freedoms.[40] Such constitutional arguments, however, are oblivious to the voluntariness of the ADR approach. Once law and ADR are kept separate, it is up to the individual to decide where his cause can be best served. A more subtle and more damaging approach is the attempt to absorb ADR through a slow “gate-keeping” process that eventually brings some form of an “Adjudicature Act” merger.[41] Of course, again, this is so reminiscent of the tension that existed between courts of Equity and those of common law. How then to proceed?
The ongoing dialectic must result in a strong from of legal pluralism where “legality is locality”;[42] where under any “jurisdiction”, a plurality of “legal systems” demarcated by (small) geographical footprints will emerge. Hence, while some commentators argue that if enough members of the public start opting out of a government system, it will soon be in trouble,[43] the root issue instead is whether devolving power to communities strengthens governance; golcalization answers in the affirmative.
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