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.
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.
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. 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.
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. 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, in a society subscribing to democratic ideals (see further discussion on the nature of conflict in Chapter 5).
However, democracy is also the go-to societal structure for providing stability, order and peace. As Diamond has said, democracy makes peace possible because it recognises diverse identities whilst also providing legal protections for group and individual rights. The political institutions at the centre of democracies empower citizens by devolving decision-making power, whilst also encouraging and enabling bargaining and accommodation.
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’. 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’.
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. It is more commonly the diverse range of additional, appropriate DR methods that perform this societal role. 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’. 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.
 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.
 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.
 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).
 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).
 See for example, Charles Tilley, Democracy (Cambridge University Press, 2007).
 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.
 See, for example, Donald Horowitz, ‘Democracy in Divided Societies’ (1993) 4(4) Journal of Democracy 18.
 Larry Diamond, The Spirit of Democracy: The Struggle to Build Free Societies Throughout the World (Times Books, 2008).
 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.
 Reuben, above n 1, 285.
 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.
 Reuben, above n 15, 282.
 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.