I have been putting the finishing touches on my chapters for the second edition of our book Non-Adversarial Justice, to be published by Federation Press in the middle of this year. The book is co-written with Monash and former Monash law colleagues Michael King (now a Magistrate in WA), Arie Freiberg and Ross Hyams. The book brings together a collection of ideas and practices from disparate areas of the criminal and civil justice system that share some common responses to the adversarial nature of our legal system. We describe these processes as ‘non-adversarial justice’ which we acknowledge is a vague and probably overly negative term, but we have stuck with it because we haven’t been able to come up with anything better. The book explains our views on these commonalities and provides a chapter on the key aspects and ideas of each ‘non-adversarial’ practice or process, including therapeutic jurisprudence, ADR, restorative justice, preventive law, holistic law and creative problem-solving. The are also chapters which situate these ideas in various fields of practice and chapters which thematically draw together new ways of thinking on lawyers, courts and legal education. The book focuses on Australia with reference to international developments.
The first edition book came out in 2009. In this new edition, we look back over the past 5 years of innovative Australian justice policy and conclude that:
“Because non-adversarialism is new and contentious it is also politically sensitive. Governments that regard this form of justice as being “soft” on crime, ineffective, “heavy-handed”, and expensive have abolished courts, schemes and programs while others recognise their value and have introduced procedural reforms, increased the number of courts and expanded their jurisdiction to cover new areas of harms or problems.”
I have been updating the chapters on family law processes and on ADR. Once of the things I enjoy about writing this book is how each chapter gives me a near-perfect helicopter-view of the terrain of that area. In relation to ADR policy, there has been a noticeable cooling in government attitudes towards ADR processes within our broader civil justice system in the past half-decade. In particular, I have observed a drawing back from widespread implementation of ADR requirements in the justice system. This is evidenced by the repeal of pre-action legislation in both Victoria and NSW in 2011 and 2013 and, also in 2013, the dissolution of the 18-year-old National Alternative Dispute Resolution Advisory Council (or NADRAC), the independent body established to advise the federal Attorney-General on policy issues relating to ADR. In our book we summarise the Australian ambivalence towards ADR in the following way:
“These changes illustrate how the place of ADR and other non-adversarial processes in the justice system is contingent upon the support and patronage of government. Real resistance to non-adversarial practices remains and can make even established non-adversarial processes the subject of political contention. “
Pre-action procedures, originally developed in England and Wales in the late 1990s, encourage early settlement of disputes, full disclosure of information between the parties and, where the matter cannot be resolved, the narrowing of the issues in dispute, all before proceedings have commenced. Effectively, they cement the place of ADR in the ordinary civil litigation process. Pre-action procedures have been introduced into three Australian jurisdictions since 2009, making this area the most dynamic in the already active field of ADR. However, the legislation introducing pre-action procedures has already been repealed in two of these jurisdictions (Victoria and NSW), revealing the significant unease that exists around the presence of ADR in the contemporary civil justice system in Australia, particularly where lawyers and the parties they represent are mandated to use ADR processes outside specialist jurisdictions. Only at Commonwealth level do pre-action procedures remain a at broad-scale level in Australia, known as “genuine steps” statements, which must be filed prior to litigating in the Federal Court of Australia and the general lists of the Federal Circuit Court of Australia under the Civil Dispute Resolution Act 2011 (Cth). So far, the federal government has indicated no public interest in changing these laws.
In England and Wales, where there are more than 12 -pre-action protocols covering particular areas of civil law, a recent review of rules and principles governing the costs of civil litigation found that the decade-old pre-action protocols system generally worked well, with a few tweeks necessary here and there. However it was recommended that one protocol that covered all areas of civil practical not governed by a specific protocol be repealed. Lord Justice Jackson, author of the review, argued that pre-action protocols work best when tailored to specific areas of practice rather than adopting a “one-size-fits-all” approach to civil litigation generally.
The English and Welsh experience of pre-action protocols shows that they can change litigation cultures and encourage more settlement (although ADR processes themselves may not be used). For Australia, the implications are that we may be better placed to develop pre-action procedures tailored to the peculiar litigation dynamics of specific areas of civil practice rather than broad-scale requirements as currently legislated in the Civil Dispute Resolution Act 2011 (Cth). Indeed in Australia, some specialist jurisdictions have for some time successfully required participation in ADR before court proceedings can be instituted for certain personal injury claims in Queensland, for farm debts in NSW, for NSW retail tenancy disputes, and in family law disputes since 2004. Failure to comply with these requirements opens a party up to an adverse costs order.
The recent skittishness around ADR policy in Australia can be connected to new governments coming to power and signalling that a new sheriff is in town. These governments, in Victoria, NSW and at federal level, have not benefited from years of high level bureaucratic advice on justice policy, may not share the commitment to ADR and may prefer to appeal to more conservative elements of the legal profession who see innovative dispute resolution policy as a challenge to the profession itself. The legal profession is inherently conservative and is slow to embrace widespread change. For so long, litigation, alongside negotiation associated with litigation practice, have been the way that lawyers have furthered their client’s interests. Compelling parties to use ADR processes such as mediation is a step too far in the eyes of many, as Victorian Attorney-General Robert Clark explained in the 2011 second reading speech for the Civil Procedure and Legal Profession Amendment Act 2011 (Vic)
“It is common sense and good practice for parties to attempt to resolve their dispute without resorting to litigation if there is a reasonable prospect of success in such an attempt. However, the government’s view, and the view of many practitioners, is that to seek to compel parties to do so through these heavy-handed provisions will simply add to the complexity, expense and delay of bringing legal proceedings, because of the need to comply with these mandatory requirements, whether or not they are likely to be useful in any particular case.” (Parliament of Victoria, Parliamentary Debates, Legislative Assembly, 10 February 2011, Victorian Government Printer, Melbourne, p.307).
My own view is that governments across the Australian jurisdictions should be putting effort (and a great deal of effort, too) into ensuring that ADR processes that are provided are of high quality and have robust protections built in for the disadvantaged and vulnerable, acknowledging that not all cases should settle, although many can, so that court processes are still necessary and towards finding the right balance between legal and non-legal service provision for civil disputes. Getting these issues rights asks us to face the tough questions head-on and address the real tensions behind the ideal of access to justice in a constrained financial context. But this is the space we need to be in for us as a nation to develop the next frontier of justice policy. Whole-scale abolition of schemes designed to increase settlements as occurred in NSW and Victoria and dissolution of high-quality advisory bodies such as NADRAC takes us further away from where we need to be. These decisions have taken us backwards.
What do we all have to do to move forward on this important social issue?