Dispute resolution, democracy and the rule of law: A philosophical framework

This is the second excerpt (taken from the final author version and with edited footnotes) from our new book: Laurence Boulle and Rachael Field, Australian Dispute Resolution Law and Practice (Lexis Nexis, 2017) in which we develop a philosophical framework for the articulation of DR values and goals. We look forward to your comments and responses. Rachael and Laurence

To provide a philosophical framework for a core set of values and goals for contemporary DR legal practice it is necessary to remove ourselves to a level of theoretical abstraction. To do this we turn (as the Productivity Commission did also) to established thinking on the purpose and place of the rule of law in a liberal democracy, and to the ‘core substantive values of democratic governance’ that connect with the operation of DR systems in our society, particularly for the prevention, management and resolution of legal disputes.[1]

Going down this path requires a clearly defined concept of democracy, something which is far from straight forward. Many words of scholarship are devoted to the definition and analysis of democracy, the consideration of which is well beyond the scope of this work.  For our purposes, then, we have distilled this scholarship into a working general definition of democracy as:

… a system of governance in which rulers are held accountable for their actions in a public realm by citizens, acting independently through the competition and cooperation of their elected representatives.[2]

We also adopt a comprehensive or ‘thick’ perspective on democracy, as more than simply ‘majority rules’ and including principles relating to both the substance, as well as the procedures, of democratic governance.[3] A simple majoritarian model of democracy, emphasising a ‘thinner’ notion of democracy with a focus on property rights, is not particularly useful to a DR analysis or to understanding the place of DR within a democratic system based on the rule of law.[4]

At the risk of over-simplifying a complex concept, democracy in a society such as Australia lays claim to characteristics such as a breadth of political inclusion, absences of arbitrary action, relative equality among citizens and the protection of liberty and autonomy within a context of collective responsibility and accountability.[5] The purpose of democracy is to support the freedom, voice and participation of its citizenry which entails that some conflict and disputing is inevitable, or even welcome,[6] in a society subscribing to democratic ideals (see further discussion on the nature of conflict in Chapter 5).[7]

However, democracy is also the go-to societal structure for providing stability, order and peace.[8] As Diamond has said, democracy makes peace possible because it recognises diverse identities whilst also providing legal protections for group and individual rights.[9] The political institutions at the centre of democracies empower citizens by devolving decision-making power, whilst also encouraging and enabling bargaining and accommodation.[10]

The orderly management of disputes is therefore a critical feature of democratic governance, a feature enabled by the rule of law. The rule of law in democracies such as Australia ensures a consistently peaceful and ordered society because it puts in place a network of accessible, fair and usually open and accountable institutions and procedures that allow for citizens to address sources of dispute and conflict. Some of these institutions and procedures are part of the formal justice system, others are practised through private ordering.

Justice Hayne has said that the two most important premises of the relationship between DR and the rule of law are: ‘first, that each party may choose whether to submit the dispute to external resolution rather than reach an agreement with the opposite party, and, secondly, that there is an established and accessible body to resolve the dispute by application of … known and predictable laws’.[11] His Honour elaborates that ‘a court system established by the State must be and remain the centrepiece of dispute resolution in accordance with the rule of law’.[12]

Justice Hayne, one of Australia’s leading judges and black-letter lawyers, expressed this view in 2002. We would argue, more than a decade later and looking forward, that the better view is that facilitative and advisory processes on the DR matrix have replaced litigation at the centre of the relationship between Australia’s rule of law and DR. It is no longer the courts alone that help define our society as one that is civilized and prevent routine disputes from escalating into violence and social chaos.[13] It is more commonly the diverse range of additional, appropriate DR methods that perform this societal role.[14] The connection between DR processes other than litigation and the rule of law is shown further below.

The critical role of DR in ensuring that democracy works means that the values of democracy should be congruent with, and in fact inform, the values of DR. While scholars debate the exact nature of democracy, they are in relative agreement about the core substantive values found within democratic systems of law and governance. These values are generally considered to include: ‘personal autonomy, participation, accountability, transparency, rationality, equality, due process, and the promotion of a strong civil society’.[15] In Chapter 4 of Australian Dispute Resolution Law and Practice, we draw on these values of democracy to identify and explore three core values of DR within the Australian rule of law: justice, party autonomy and community.[16]

[1] See Richard C Reuben, ‘Democracy and Dispute Resolution: The Problem of Arbitration’ (2004) 67 Law and Contemporary Problems 279, 282. See also, Richard C Reuben, ‘Democracy and Dispute Resolution: Systems Design and the New Workplace’ (2005) 10 Harvard Negotiation Law Review 11.

[2] Philippe C Schmitter and Terry Lynn Karl, ‘What Democracy Is … and Is Not’ in Larry Diamond and Marc F Plattner (eds), The Global Resurgence of Democracy (John Hopkins University Press, 2nd ed, 1996) 49, 49-50.

[3] Thinner definitions of democracy emphasise procedure over substance with a focus on majoritarianism in government.  See Arend Lijphart, Patterns of Democracy – Government Forms and Performance in Thirty-Six Countries (Yale University Press, 1999).

[4] Arend Lijphart, Thinking about Democracy – Power Sharing and Majority Rule in Theory and Practice (NY: Routledge, 2008); Laurence Boulle, South Africa and the Consociational Option (Juta and Co, 1985).

[5] See for example, Charles Tilley, Democracy (Cambridge University Press, 2007).

[6] Mary Parker Follett, ‘Constructive Conflict’ in Pauline Graham (ed), Mary Parker Follett: Prophet of Management: A Celebration of Writings from the 1920s (Harvard Business School Press, 1996) 67.

[7] Dean Pruitt and Sung Hee Kim, Social Conflict: Escalation, Stalemate, and Settlement (MacGraw-Hill Higher Education, 3rd ed, 2004).

[8] See, for example, Donald Horowitz, ‘Democracy in Divided Societies’ (1993) 4(4) Journal of Democracy 18.

[9] Larry Diamond, The Spirit of Democracy: The Struggle to Build Free Societies Throughout the World (Times Books, 2008).

[10] Ibid.

[11] Justice Hayne, ‘Dispute Resolution and the Rule of Law’, Sino-Australian Seminar, Beijing, 20-22 November 2002 available at: http://www.hcourt.gov.au/assets/publications/speeches/current-justices/haynej/haynej_DisputeResolutionBeijing.htm.

[12] Ibid.

[13] Reuben, above n 1, 285.

[14] This was acknowledged decades ago: Robert H Mnookin and Lewis Kornhauser, ‘Bargaining in the Shadow of the Law: The Case of Divorce’ (1979) 88 Yale Law Journal 950.

[15] Reuben, above n 15, 282.

[16] We use the word community to denote civil society. In his Politics Aristotle used the phrase civil society to refer to a ‘community’ in the sense of a polis made up of free and equal citizens living under the rule of law.

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About Dr Rachael Field

Rachael is a Professor of Law in the Law Faculty of Bond University. Her key teaching and research interests are in legal education and dispute resolution. Rachael was awarded an Australian Learning and Teaching Council Citation in 2008 and was made an ALTC Teaching Fellow in 2010. In 2010 Rachael worked with Professors Sally Kift and Mark Israel on the development of the Threshold Learning Outcomes for Law. In 2013 Rachael and Prof Nick James published a first year law text entitled "The New Lawyer". Rachael has been a member of the First Year in Higher Education Conference organising committee since 2007 and now chairs that committee. She was awarded the 2013 Lexis Nexis Australasian Law Teachers’ Association Major Prize for Teaching Excellence and Innovation jointly with her colleague James Duffy. In 2014 Rachael was awarded an Office of Learning and Teaching national Teaching Excellence Award. Rachael has also been a member of the Women’s Legal Service, Brisbane Management Committee since 1994 and has been President of the Service since 2004. In 2010 Rachael, along with the Women's Legal Service Brisbane, was commissioned by the Federal Attorney-General to design a model of family dispute resolution for use in matters where there is a history of domestic violence. This model was implemented in 5 locations around Australia for 18 months and was evaluated by the Australian Institute of Family Studies. In 2011 and 2012 Rachael was invited by the Australian Human Rights Commission to contribute to their International Program by presenting the model to bi-lateral workshops with the All China Women's Federation. Rachael completed her PhD through the Faculty of Law at the University of Sydney under the supervision of Professor Hilary Astor in 2011. Her thesis explored the notion of neutrality in mediation and offers an alternative paradigm based on professional mediator ethics. Rachael was named Queensland Women Lawyer of the Year for 2013. Research Interests • Dispute Resolution • Women and the Law • Restorative Justice • Family Law • Legal Education

2 thoughts on “Dispute resolution, democracy and the rule of law: A philosophical framework

  1. Great work Rachael. The reason I love mediation is that people can make decisions themselves and not have one imposed on them. Just being involved in a facilitative mediation can mean that they can gain some understanding with their fellow citizen and use conflict as a means to working towards a better future. Party self-determination – the big ticket item which sits well with democratic principles.

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  2. Thank you for the excerpt. I agree with and welcome the approach taken. Theoretical abstraction and doctrinal formulation are timely. Much of the present dialogue regarding the place of DR is focused upon the augmentation of the litigation process by diversionary options of DR or seeing DR as in competition with litigation. Further, much dialogue regarding DR is reactive to dwindling court resources and issues relating to the unaffordability of legal representation and consequent difficulties with “access to justice”, assuming or conflating access to justice with access to a court determination.

    DR has reached a maturity and level of sophistication wherein it is timely to consider more doctrinal and philosophical questions such as those posed in your excerpt-what do we mean by “the rule of law” (a phrase used equally in defence of oppressive and libertarian actions) and “what is justice?”. Only. by asking such questions can we truly appreciate and realise the value of DR and it’s importance in achieving and maintaining society as we may choose to image it. Indeed, such relflection and discussion is a valueable means of identifying and questioning our otherwise adversarial and polemic practices (the very nature of traditional litigation) and their role in disempowering and subjugating individuals (and by doing so creating statafication and inequality in society) rather than, instead, pursuing irenicism.

    Thank you again for sharing the excerpt and I look forward to the ongoing doctrinal discourse.

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