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

Justice in DR = Fairness?

This second blog in the series for May on the values and goals of DR is also adapted from Chapter 4 of: Laurence Boulle and Rachael Field, Australian Dispute Resolution – Law and Practice (LexisNexis, 2017).

Much of the DR literature about justice connects or conflates it with notions of fairness. NADRAC, for example, noted in its 1997 Discussion Paper on Issues of Fairness and Justice in Alternative Dispute Resolution, that the words justice and fairness ‘are essentially interchangeable’. [1] The word ‘fair’ is mentioned 179 times in volume 1 alone of the Productivity Commission’s 2014 Report on Access to Justice, often in conjunction with words such as ‘justice’, ’equity’, ‘transparency’ ‘openness’ ‘dignity’ and ‘reasonableness’. It has been said that ‘a just result must be a fair result’.[2]

Albin in her seminal article ‘The Role of Fairness in Negotiation’ identifies fairness as a ‘slippery concept’ but one which is an influential factor in DR across diverse cultures and disciplines.[3] Albin refers to justice as a macro concept which points to ‘what is right and wrong’.[4] Fairness on the other hand is seen as a concept in DR contexts that has a less definitive and a more practical, contextualised and individualised nature.[5]

It may not be possible to identify all the elements of fairness in DR with universal acceptance.[6] As Albin says: ‘fairness is an element of acceptability’,[7] and acceptability is something which is judged subjectively. In DR processes other than litigation this is often expressed as ‘what the parties can live with’.[8] The outcome may not be perfect but if the process is considered to be fair, it may thereby be seen as just and consequently acceptable to the parties. It is a challenging task, then, to develop a values framework of general application for DR that is relevant to processes across the matrix, especially if such a framework is to include a conception of justice as fairness which is responsive to the relevant individual and subjective perspectives of parties in dispute.

It would not be a satisfactory conception of fairness as a value for DR, however, if it were simply a postmodern blank canvass of individual perceptions. It is necessary to identify some core elements of fairness across DR systems.  Frey’s articulation of a ‘first class dispute resolution process, whether litigation or an alternative process’ refers to ‘impartiality, a just process and a just result’.[9]  These elements sit consistently with Albin’s identification of fairness as: structural fairness, process fairness, procedural fairness and outcome fairness.[10] They are also in accord with NADRAC’s focus on fairness and justice in procedure and outcome.[11]

What we know from brain research is that it is important for humans to perceive that they are being treated fairly. This is because being treated fairly is said to ignite the brain’s reward circuitry. UCLA scientists reported in 2008, for example, that ‘the human brain responds to being treated fairly the same way it responds to winning money and eating chocolate’.[12]

The significant body of scholarship and literature on the topic of fairness leads us then to suggest three process goals that contribute to the enactment of the macro value of justice in DR. These goals are: procedural justice (fair process), substantive justice (fair outcomes) and impartiality. The satisfaction of these goals is the safeguard that critics of processes other than litigation find lacking, and when these fairness-related goals are achieved, whatever the DR processes is, it can be regarded as true to the value of justice. In the blog posts that follow in the coming days of May I offer an analysis of the process goals of procedural and substantive justice and impartiality to further elucidate the nature of justice in DR systems.

Comments or responses to these thoughts are most welcome at any time!

[1] NADRAC, Discussion Paper on Issues of Fairness and Justice in Alternative Dispute Resolution (Commonwealth of Australia, 1997), 20. See also, Cecilia Albin, Justice and Fairness in International Negotiations (Cambridge University Press, 2001).

[2] Martin A Frey, ‘Does ADR Offer Second Class Justice?’ (2000) 36 Tulsa Law Journal 727, 727.

[3] Cecilia Albin, ‘The Role of Fairness in Negotiation’ (1993) 9(3) Negotiation Journal 223, 223.

[4] See Morton Deutsch, Distributive Justice: A Social Psychological Perspective (Yale University Press, 1985) and Michael L Moffitt and Robert C Bordone, The Handbook of Dispute Resolution (Jossey-Bass, 2005) 90.

[5] Albin, above n 3, 225.

[6] Ibid. Carrie Menkel-Meadow, ‘Whose Dispute Is It Anyway: A Philosophical and Democratic Defense of Settlement (In Some Cases) (1994) 83 Georgetown Law Journal 2663.

[7] Albin, above n 3, 225

[8] Menkel-Meadow, above n 6.

[9] Frey, above n 2, 727.

[10] Albin, above n 3, 225.

[11] NADRAC, above n 1, 20.

[12] Stuart Wolpert, ‘Brain Reacts to Fairness as it Does to Money and Chocolate, Study Shows’ UCLA Newsroom Science + Technology April 21, 2008, 6. See also, E Allan Lind, ‘Fairness Heuristic Theory: Justice Judgments as Pivotal Cognitions in Organizational Relations’ (2001) 56 Advances in Organizational Justice 88.

First or Second-Class Justice? Justice as a DR Value

The values and goals of DR systems are an important dimension of the DR panorama and an understanding of these values and goals is critical to ethical, effective and efficient practice in DR contexts. My contribution to the Blog this month explores the values and goals of DR methods by adapting content from Chapter 4 of my new work with Laurence Boulle: Australian Dispute Resolution – Law and Practice (LexisNexis, 2017).

There are high expectations of DR processes in the Australian community and its civil justice system, and these expectations are difficult to meet. Despite efforts over recent decades to inculcate community dispute resolution, and to renew and refresh the way the civil justice system operates, the DR system at large, and the way it is managed by governments, and used by lawyers and citizens, remains imperfect and in need of improvement.

Concerns continue to exist, for example, about the costs of DR, both in relation to State resources invested in determinative processes and costs to individuals who seek assistance with managing or resolving disputes through processes across the DR matrix. The concerns also pertain to problems more broadly associated with accessing just and fair outcomes to legal and other disputes. Worryingly, there seems also to be a continuing resistance within the system to fully embracing DR processes other than litigation that remain for some (particularly perhaps legal professionals of long-standing) unfamiliar, and continue to be perceived as not adequately protecting parties’ legal rights.

The concepts of justice, party autonomy and community are core DR values that should be used to inform the achievement of appropriate DR goals.

Justice as a dispute resolution value

The particular focus of this blog is on justice as a dispute resolution value.[1] ‘Justice’ is an important philosophical and intellectual element of any framework of DR values, and arguably a foundational driver and motivator for all DR processes in the matrix. The notion of justice should inform day-to-day practice, both in legal contexts and outside them. Amongst the core substantive values of democratic systems of law and governance the conception of justice connects with perceptions of participation, accountability, transparency, rationality, equality and due process.[2]

DR practitioners working with the value of justice at the centre of their professional identity can critically assess their practices and their impacts by asking reflective questions like: ‘Does my practice contribute to achieving justice for each of the parties?’ and ‘How can the DR processes I practice better provide the parties with just process and outcomes?’

To develop a framework of DR values with justice as a critical element a clear conception of justice itself, in the DR context, is necessary. Justice is, however, a complex notion and hard to conclusively define, not least in the context of law and dispute resolution.[3]  Welsh has stated concerns that justice in this context is ‘increasingly marginalized as a sweet, old-fashioned notion’,[4] perhaps because it is ‘so undefinable and unattainable that thinking about it generates more self-doubt than clarity’.[5] The Productivity Commission noted: ‘”Justice” is what people are seeking access to’ but it is a concept that ‘can be easier to recognise than to define’.[6] Stuart Hampshire, in his book Justice Is Conflict, concludes that there may never be agreement on a universal concept of justice.[7] Julie Macfarlane has reported that when a lawyer was asked in her research to differentiate between a ‘good’ outcome and a ‘just’ outcome, their response was: ‘There’s no justice; it’s just a game. What are you, new? That’s a really funny question’. Another lawyer responded: ‘Justice is way too deep for me.’[8]

Big theories of justice, such as Rawls’ theory of the fundamental principles necessary for a just and morally acceptable society, are too broad and abstract to assist in building a useful values framework for DR.[9] Rawls’ restatement of his theory in 2001 as justice as fairness[10] and Dworkin’s theory of ‘law as integrity’ are closer to the mark in terms of integrating understandings of fairness into explaining the concept of justice.[11] Dworkin’s theory is one of the most influential about the nature of law in contemporary times, but it was written for an adversarial justice system focussed on judicial interpretation of the law, and so is adaptable but not adoptable for our purposes.[12]

For a more concrete approach it is useful to consider how legal dictionaries define justice, namely as ‘rightfulness’, ‘fairness’, ‘that which is deserved’, ‘a moral value generally supposed to be the end to which laws are the means’.[13] With concepts such as rightfulness and fairness in mind, it is relatively uncontroversial to assert that drawn-out, expensive, difficult to access, alienating and hard to understand DR processes do not satisfy a general conception of justice. Litigation is sometimes said to be unjust in these ways and DR processes other than litigation are often presented as mechanisms for addressing ways in which litigation compromises justice for disputing parties. On the other hand, DR systems that are more efficient in terms of cost and time and that are easier to access than litigation but less certain to protect strict legal rights and entitlements of citizens, are often posited as providing potentially unjust procedures and outcomes, or of providing ‘second-class’ justice.[14]

The identification of ‘classes’ of justice and the juxtaposition of first- and second-class justice has been a part of the DR literature since at least the 1980s.[15] The argument that DR processes other than litigation can offer only ‘second-class justice’ posits that it is those who cannot afford to go to court who are forced to use ‘ADR’ processes and are required as a result to compromise and collaborate, rather than harnessing the authority of the law and the system that formally administers it, ultimately being denied the opportunity to ‘win’ their case.[16] In the 1980s Abel led the argument that underprivileged parties are more likely than pecunious parties to be referred to ADR schemes, and that such schemes offered the rhetoric of party empowerment and autonomy but did not always deliver this in reality.[17] It has also been claimed that the term ‘justice’ has no relevance to DR processes other than litigation and should be used only in relation to the procedures and outcomes of  formal justice systems.[18]

A system or process that is ‘second-class’ is one that is ‘a cut below the best’, ‘second rate, inferior or mediocre’.[19] A conviction that DR processes other than litigation offer second-class justice centres on the view that litigation provides the model of first-class justice. This assumes, by definition, that litigation is a cut above the rest, first rate, superior, exceptional and excellent. Other formal law-informed determinative processes, such as arbitration and adjudication, have also had a long and strong correlation with first class conceptions of justice. As statues of justice as a blindfolded goddess imply, litigation offers a process in which the judge impartially judges ‘the case rather than the parties’.[20] Amongst other things this means that justice through litigation is transparent and accountable, that it provides a level of consistent if not always strictly equal treatment of parties and their matters, and that its justice credentials warrant the imposition of enforceable state-sanctioned outcomes.

The capacity of DR processes to deliver justice is often measured by way of comparison with the justice principles of the law and its implementation through litigation. NADRAC summarises the safeguards of fairness and justice in litigated processes as follows:

Power imbalances between the participants can be ameliorated by legal representation. Procedural and evidentiary rules ensure that each person has a chance to present their case and to challenge the arguments and evidence of the other person. There are enforceable procedures which ensure that each person has access to relevant evidence so that the dispute is decided on the basis of appropriate disclosure of information. There is a well-qualified and respected third party decision maker who evaluates the evidence and arguments of the parties and who makes a decision according to established principles. The process of litigation is open and observable and decisions are subject to appeal.[21]

Resnik has listed 12 qualities of due process found in determinative processes such as litigation that are considered to be ‘valued features’:[22]

  • Rules of procedure bestow individual autonomy and opportunities for the litigants to persuade the decision-maker of the rightness of their case.
  • For decision-makers, procedure provides a concentration of power in judicial decision-making; a diffusion and reallocation of power through the use of juries, appellate courts and hearings de novo; impartiality and visibility; rationality and norm enforcement; ritual and formality.
  • Adjudicative decision-making has the valued features of finality and revisionism, economy (in the sense of low direct costs) and consistency yet differentiation.

Resnik does not claim this list to be comprehensive, nor that the features should always be accorded equal weight. She accepts that there are tensions among them, with different priorities accorded at different times, and acknowledges that a number of these features are disputed or can be found in processes other than litigation.

Since his appointment in 2006, Chief Justice Wayne Martin of the Supreme Court of Western Australia has been fond of analogising the court system, albeit through a critical lens, with a Rolls Royce, a first-class vehicle. He has said, for example, that the system is: ‘A Rolls Royce of justice systems in the sense that it is the best that money, a lot of money, can buy. But there isn’t much point in owning a Rolls Royce if you can’t afford the fuel to drive it where you want to go. You can polish it, admire it and take pride of ownership from it but it doesn’t perform its basic function sitting in the garage…. It might be time to consider trading our Rolls Royce for a lighter, more contemporary and more fuel-efficient vehicle which will get us where we need to go just as effectively and perhaps more quickly’.[23]

The value characteristics of litigation, referred to above, are seen as providing justice through an impartial process based on principles of procedural fairness. It is because processes other than litigation may not as comprehensively satisfy these elements that they are judged as lacking the capacity to provide ‘first-class justice’, and are questioned in relation to their ‘internal procedures, their impact on individuals and their broader societal consequences’ (including their emphasis on compromise and settlement).[24] This perception is widely held because the ‘umpire’ model that litigation represents has deep roots in Western conceptions of justice.[25]

However, the actual use of litigation does not accurately correlate with its high regard as a DR system. Most citizens do not commonly have recourse to the courts, or to the law or lawyers, even where a dispute raises legal issues and claims.[26] It seems then that public perceptions of justice, and particularly of the nature of first-class justice offered by the courts, are typically not shaped by personal or real experience. Further, the last 30 years of advocacy for community DR and for reforms to civil justice systems evidence wide-spread recognition that litigation, while undoubtedly an important aspect of the DR matrix, has often failed to provide any sort of justice for the general citizenry, let alone first-class justice. While litigation represents notions of objectivity, rationality, consistency and formal equality before the law, inaccessible justice is justice denied. Justice through the courts is perhaps more an ideological ‘vibe’, as one of Australia’s most famous lawyers might say.[27]

As Rhode has commented, critics of the justice offered by DR systems other than litigation need to consider how often and on what terms ‘first-class’ justice is available.[28]  Menkel-Meadow reminds us that, ‘legal justice is not always actual justice’.[29] For Frey, first class justice is not limited to litigation, rather a ‘first class dispute resolution process, whether litigation or an alternative process, must offer the disputants impartiality, a just process and a just result’.[30]

It is apparent then that in order to construct a robust values framework for the DR processes represented in the matrix, a meaning of justice is required which is relevant across DR contexts and deals with the challenges of a perceived hierarchy in different classes of justice provided by various processes.[31]  Such a framework needs to deal realistically with issues of access to justice. It must balance the importance of maintaining a legal doctrine of precedent as part of justice under the rule of law,[32] with the need for less public and formal forms of dispute resolution which are more humane and provide individually tailored outcomes.[33] The framework also needs to address concerns about the relationship between private settlement and the public enforcement of rights.[34]

Constructing such a framework is far from a simple task.  As the former Chief Justice of the Federal Court of Australia, Michael Black, has said: ‘We should maintain the search for that elusive point of equilibrium at which the competing pulls of cost, speed, perfection and fairness are balanced in a way that produces substantial and accessible justice — not perfection, but nevertheless processes and outcomes readily recognisable as substantial justice according to law’.[35]

In the blogs that follow this month I continue to develop these ideas. So stay tuned!

[1] Some of the influential early works on this topic in the DR field include: Richard Abel (ed), The Politics of Informal Justice, Volume 1 (Academic Press, 1982), Jerold Auerbach, Justice Without Law (Oxford University Press, 1983); Roger Matthews (ed), Informal Justice? (Sage, 1988); Susan Silbey and Austin Sarat, ‘Dispute Processing in Law and Legal Scholarship: From Institutional Critique to the Reconstruction of the Juridical Subject’ (1989) 66 Denver University Law Review 437; Sally Engle Merry and Neal Milner (eds), The Possibility of Popular Justice: A Case Study of Community Mediation in the United States (University of Michigan Press, 1993);

[2] 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.

[3] There is a vast literature on the concept of justice spanning from Plato’s Republic (trans Robin Waterfield) (Oxford University Press, 1984) through to one of Dworkin’s last and most expansive works – Ronald Dworkin, Justice for Hedgehogs (Harvard University Press, 2011) and Eric Heinze, The Concept of Injustice (Routledge, 2013).

[4] Nancy A Welsh, ‘Remembering the Role of Justice in Resolution: Insights from Procedural and Social Justice Theories’ (2004) 54 Journal of Legal Education 49, 49.

[5] Ibid 50.

[6] Productivity Commission, Access to Justice Arrangements: Report Volume 1 (Commonwealth of Australia, 2014), 75.

[7] Stuart Hampshire, Justice Is Conflict (Princeton, 2000) 4.

[8] Julie Macfarlane, The New Lawyer: How Settlement is Transforming the Practice of Law (UBC Press, 2008).

[9] Namely, enjoyment of the most extensive basic liberty possible (without compromising the liberty of others), and social and economic positions to everyone’s advantage and open to all. See for example: John Rawls, A Theory of Justice (Harvard University Press, rev ed, 1999) (first published in 1971); Raymond Wacks, Understanding Jurisprudence: An Introduction to Legal Theory (Oxford University Press, 3 ed, 2012).

[10] See John Rawls, Justice as Fairness: A Restatement (Belknap Press, 2001).

[11] See Ronald Dworkin, A Matter of Principle (Harvard University Press, 1985) and Ronald Dworkin, Justice in Robes (Harvard University Press, 2006).

[12] Ibid.

[13] For example, see the CCH Concise Dictionary of Modern Law.

[14] Martin A Frey, ‘Does ADR Offer Second Class Justice?’ (2000) 36 Tulsa Law Journal 727.

[15] Abel, above n 1; Auerbach, above n 1.

[16] See for example, Stephen B Goldberg, Frank EA SanderNancy H Rogers and Sarah Rudolph ColeDispute Resolution: Negotiation Mediation & Other Processes (Wolters Kluwer, 6th ed, 2012). See also Lola and Mauro Cappelletti, ‘Alternative Dispute Resolution Processes within the Framework of the World-Wide Access-to-Justice Movement’ (1993) 56 The Modern Law Review 282.

[17] Ibid.

[18] NADRAC itself noted this assertion – see NADRAC, Issues of Fairness and Justice in Alternative Dispute Resolution (Commonwealth Government, 1997) 20.

[19] Frey, above n 14, 728.

[20] Richard A Posner, ‘The Role of the Judge in the Twenty-First Century’ (2006) 86 Boston University Law Review 1049, 1057 referring to Richard A Posner, Law, Pragmatism, and Democracy (Harvard University Press, 2003) 284-86.

[21] NADRAC, Issues of Fairness and Justice in Alternative Dispute Resolution: Discussion Paper (Commonwealth of Australia, 1997), 16.

[22]Judith Resnik, ‘Tiers’ (1983-4) 57 Southern California Law Review 837, 844-59.

[23] Wayne Martin, ‘Bridging the Gap’, Address to the National Access to Justice and Pro Bono Conference (12 August 2006); Wayne Martin, ‘Improving Access to Justice through the Procedures, Structures and Administration of the Courts’, Address to the Australian Lawyers Alliance Western Australian State Conference, 21 August 2009 Novotel Langley Hotel Perth, WA; and Wayne Martin, ‘Access to Justice’, Notre Dame University Eminent Speakers’ Series Inaugural Lecture, Fremantle Campus Wednesday, 26 February 2014. See also, The New Lawyer, ‘Justice an Easily Admired, Yet Inaccessible Rolls Royce: Chief Justice’, The Lawyers’ Weekly, 27 August 2009, http://www.lawyersweekly.com.au/the-new-lawyer/bar-bench/11887-justice-an-easily-admired-yet-inaccessible-rolls-r. This analogy has been used by others also, for example, Donna Cooper, ‘When Rolls Royce and Holden Justice Collide: An Analysis of the Operations of the Federal Magistrates Service in Queensland in the Family Law Arena’ (2003) 3(2) QUT Law and Justice Journal 1.

[24] Laurence Boulle, Mediation Principles Process Practice (Lexis Nexis, 1996). See also Stephen B Goldberg, Frank EA Sander, Nancy H Rogers, Sarah Rudoph Cole (eds), Dispute Resolution (Wolters Kluwer, 6th ed, 2012); Francis Regan, ‘Dilemmas of Dispute Resolution Policy’ (1997) 8 Australian Dispute Resolution Journal 5, 14–15.

[25] Posner makes consistent reference to the judge as ‘umpire’:   Richard A Posner, ‘The Role of the Judge in the Twenty-First Century’ (2006) 86 Boston University Law Review 1049, 1057 referring to Richard A Posner, Law, Pragmatism, and Democracy (Harvard University Press, 2003).

[26] This research has been around for a long time – see for example Russell Smith and Sally Lloyd-Bostock, Why People Go To Law: An Annotated Bibliography of Social Science Research (Centre for Socio-Legal Studies, Oxford, 1990); and Hazel Genn, Paths to Justice: What People Do and Think About Going to Law (Oxford University Press, 1999), 246, 247-8.

[27] Dennis Denuto: ‘In summing up, it’s the Constitution, it’s Mabo, it’s justice, it’s law, it’s the vibe, and … no that’s it … it’s the vibe. I rest my case’. The Castle (1997) directed by Rob Sitch.

[28] Deborah L Rhode, Access to Justice (Oxford University Press, 2004) 42.

[29] Carrie Menkel-Meadow, ‘From Legal Disputes to Conflict Resolution and Human Problem Solving: Legal Dispute Resolution in a Multidisciplinary Context’ (2004) 54(1) Journal of Legal Education 7, 8.

[30] Frey, above n 14, 727.

[31] Edgar Allan Lind and Tom R Tyler, The Social Psychology of Procedural Justice (Plenum Press, 1988).

[32] David Luban, ‘Settlements and the Erosion of the Public Realm’ (1995) 83 Georgetown Law Journal 2619.

[33] See discussion in Boulle, above n 24, regarding ‘mediation’s alternative justice model’, 210-212.

[34] Silbey and Sarat, above n 1.

[35] Michael Black in the Productivity Commission Report, above n 6, 92.

DR Praxis

DR Praxis[1]

The new work Australian Dispute Resolution Law and Practice (LexisNexis, 2017) articulates how there is a deep diversity in Australian DR practice which is grounded in a rich history (see Chapter 3). The early enthusiasm for ‘ADR’ was at times unbounded and uncritical, but the practice of DR in Australia is now well established and its roots are strong because they have been informed by developing critiques of DR processes across the matrix and by assessments of the potential of DR, including empirical studies and evaluations.

Nevertheless, there has, at times, been a certain level of disconnect between DR theory and DR practice. In order for DR to fulfil a new central role in legal professional practice in the future, a purposeful and rigorous approach is necessary to ensure that DR theory informs its practice and that practice developments inform DR theory. This is the DR praxis project; a project that is deserving of far more rigorous attention in the DR community. In the book, we flag the importance of the issue, highlight some key elements of DR praxis, and suggest some ways in which the praxis of DR can be sustained and supported into the future. There will always be a need to continue empirically researching and evaluating and theorising about DR systems. It is also important to draw from the existing body of theoretical, scholarly DR knowledge to inform the praxis project.

Praxis and DR advocacy[2]Australian Dispute Resolution Law and Practice is about contemporary lawyering and legal practice in Australia, and how traditional approaches to the delivery of legal services and to ways of being a lawyer need to be reconceptualised. Lawyers must now be more than one dimensional adversarial fighters for rights and entitlements. For a sustainable future for the legal profession, lawyers must be multi-dimensional, multi-skilled, adaptable and agile practitioners in the context of the processes across the DR matrix.

How lawyers advocate in DR contexts, and what a legal DR advocate looks like (or should look like) is arguably one of the most important areas where a cultural shift is necessary for DR and legal praxis to move forward. It is critical that this shift is informed by the values and goals of DR and its theory (see Chapter 4). Both adversarial and non-adversarial advocacy knowledge, skills and attitudes are necessary for the provision of legal services to fulfil the DR values of justice, party autonomy and community. In Macfarlane’s words, lawyers must be able to ‘wear two hats’.[3]

Challenge: Some legal practitioners are resistant to accepting non-adversarial forms of advocacy as true advocacy – because legal advocacy has for so long been associated with adversarial approaches and court action. How can we promote non-adversarial forms of advocacy as having efficacy given the historical legal approach to advocacy?

[1] See for example, Richard J Bernstein, Beyond Objectivism and Relativism: Science, Hermeneutics and Praxis (University of Pennsylvania Press, 2011); Eric K Yamamoto, ‘Critical Race Praxis: Race Theory and Political Lawyering Practice in Post-Civil Rights America’ (1997) 95 Michigan Law Review 821.

[2] On this issue see for example, Julie Macfarlane, The New Lawyer (UBC Press, 2008). This section of the Chapter particularly draws from Rachael Field, James Duffy and Anna Huggins, Lawyering and Positive Professional Identities (LexisNexis Butterworths, 2014), ch 13. Other important contributions to the literature on legal advocacy in DR contexts include: Donna Cooper and Mieke Brandon, ‘Non-Adversarial Advocates and Gatekeepers: Lawyers, FDR Practitioners, and Cooperative Post-Separation Parenting’ (2008) 19(2) Australasian Dispute Resolution Journal 104; Donna Cooper, ‘Assisting Future Lawyers to Conceptualise their Dispute Resolution Advocacy Role’ (2013) 24(4) Australasian Dispute Resolution Journal 242; Donna Cooper, ‘The ‘New Advocacy’ and the Emergence of Lawyer Representatives in ADR’ (2013) 24 Australasian Dispute Resolution Journal 178;Donna Cooper, ‘Representing Clients from Courtroom to Mediation Settings: Switching Hats Between Adversarial Advocacy and Dispute Resolution Advocacy’ (2014) 25(3) Australasian Journal of Dispute Resolution 150; Donna Cooper, ‘Lawyers Behaving Badly in Mediations: Lessons for Legal Educators’ (2014) 25(4) Australasian Dispute Resolution Journal 204. See also, Olivia Rundle, ‘Barking Dogs: Lawyer Attitudes Towards Direct Disputant Participation in Court-Connected Mediation of General Civil Cases’ (2008) 8(1) QUT Law and Justice Journal 77; Olivia Rundle, ‘Lawyers’ Perspectives on ‘What is Court-Connected Mediation for?’ (2013) 20(1) International Journal of the Legal Profession 33; Olivia Rundle, ‘Lawyers’ Participation in Mediation and Professional Ethical Disposition’ (2015) 18(1) Legal Ethics 46; Olivia Rundle, ‘Lawyers’ Preparation for Court-Connected Mediation: The Supreme Court of Tasmania’ (2013) 32 University of Tasmania Law Review 20; Bobette Wolski, ‘On Mediation, Legal Representatives and Advocates’ (2015) 38 UNSW Law Journal 5; Paula Baron, Lillian Corbin and Judy Gutman, ‘Throwing Babies out with the Bathwater – Adversarialism ADR and the Way Forward’ (2014) 40 Monash University Law Review 283; Mary Anne Noone and Lola Akin Ojelabi, ‘Ethical Challenges for Mediators around the Globe: An Australian Perspective’ (2014) 45 Washington University Journal of Law and Policy145.

[3] Julie Macfarlane, above n 2, 98, 117.

Happy New Year from the ADR Research Network!

To all our followers and supporters of the ADR Research Network Blog.

Happy New Year and our best wishes for 2017!

It’s fair to say that 2016 was our most successful year yet. The Blog achieved its highest number of views since it was established in 2013 with more than 9000 views and almost 6000 visitors. Compare this with just over 800 views and just over 400 visitors for 2013. The Network members posted 64 posts across the year on diverse and interesting DR matters. These posts reached readers on almost every continent of the world.

In 2017 we aim to continue our contribution to scholarly critical thinking about DR and its place in contemporary global societies.  We look forward to growing the Network, and increasing the reach of our collective scholarship even further.

Thank you for following us in 2016 – we hope you will join us for another great year in 2017.

With our warmest wishes

The ADR Research Network Members

Conflict and disputes as lawyers’ business: cognitive, emotional and behavioural dimensions

This is a further (edited) excerpt from Chapter 5 of our new book: Laurence Boulle and Rachael Field, Australian Dispute Resolution Law and Practice (Lexis Nexis, 2017) in which we discuss the nature and dimensions of conflict and disputes – particularly from the perspective that conflict and disputes are the core business of lawyering. We look forward to your comments and responses. Rachael and Laurence

Many disciplines investigate, research and analyse the nature and dimensions of conflict and disputes, from anthropology to sociology, and from psychology to political science.[1] The nature and dimensions of conflict are not, however, topics afforded significant attention within the traditions of law and legal practice. This is cause for surprise since a major part of law’s project involves dealing with conflict and disputes and their consequences, and there is significance in how legal events and interventions themselves impact on their scope, intensity and manageability. This Chapter suggests that conflict and disputes are the business of law and of lawyers, and their configuration should be as much the focus of the legal profession’s exercise of its expertise as bodily anatomy is to that of the medical profession.

The non-legal disciplines inform us that conflict and disputes are natural and everyday phenomena[2] encountered in homes, communities, boardrooms, parliaments and war zones throughout the world. They are played out vicariously in the news media and in television and in theatre and computer games and are not absent from non-human animals’ behaviours as well.[3] Whether between individuals, corporations or nation states conflicts and disputes all assume some degree of incompatibility among the parties involved, whether over objectives, resources, strategies, perceptions or other inconsistent preferences. The incompatibilities can lead to disagreement and disagreement can lead to some kind of struggle, where each side pursues its own preferences in ways not acceptable to the other. The struggle can be verbal, as in hostile publications or political polemics; tactical, such as the formation of alliances or engagement of lawyers; or activist, such as trade embargoes or armed hostilities.

Conflicts and disputes are seldom static in nature – they tend to be living organisms involving internal dynamics and fluctuating environmental pressures. While conflicts may commence as underlying feelings of uncertainty and unease over the prospective activities of others they can escalate into something more overt and significant. To take a topical example, there could be underlying tensions among farmers, exploration companies, government officials and politicians over properties targeted for coal-seam gas prospecting licenses.[4] This situation of covert conflict could endure for years in a relatively static state, despite occasional skirmishes from one side or the other, until there is a precipitating event which brings it into the open. The underlying conflict could evolve where one or other party takes public actions which raise contentious issues – for example government provides a licence for gas exploration against the wishes of a resistant farmer. Here there is overt behaviour which creates expectations of loss for the farmer in relation to the economic viability, environmental bio-security or the very existence of the family farm for future generations. The situation would evolve into a dispute when the licensed exploration company attempts to access the property and is obstructed by a protesting community group. The dispute could escalate where the latter are prohibited from their resistance activities by court order. There are now manifest issues requiring dispute management, namely the lawfulness of the prospecting corporation’s access to the farm, alleged non-compliance with the terms and conditions under which prospecting can occur, and the legalities of the protesting groups’ behaviour.

While the definitive DNA of conflict is yet to be revealed there is increasing knowledge and understanding about the phenomenon.[5] This knowledge is important for lawyering. Some commentators refer to three potential aspects to any conflict – the cognitive, the emotional and the behavioural.[6]

The first, cognitive, involves the perceptions, beliefs and understandings of those in conflict. Here parties could have a range of subjective perceptions that their needs are not being met because of the incompatible and unreasonable activities of others – for example a parent waiting for their children to be returned after an access visit perceives the other parent to be inconsiderate and believes they children’s interests are not best served by having access. The second is the emotional dimension, which involves the subjective feelings of people in conflict situations, including those directed at others involved in the conflict – for example the waiting party is upset, frustrated or angry over continual delays in returning the children. Both the cognitive and emotional facets of conflict might not be known to others if they are suppressed and not articulated by the party experiencing them. This is not the case with the third dimension, the behavioural, which comprises the external and observable actions which parties in conflict take in expressing their feelings, articulating their views on the situation’s rights and wrongs and pursuing concrete actions in attempting to get their needs met – the parent in the above example remonstrates with the recalcitrant party, seeks legal advice or attempts to amend the contact arrangements.

The dimensions of conflicts and disputes need not coincide with one another. Thus, a small business owner may have negative perceptions (cognitive) about a dispute situation with a large supplier, but chooses to suppress their sense of injustice or to withdraw from the situation (behaviour) for emotional relief (emotion); alternatively they might negotiate a settlement and implement its terms (behaviour) but still regard themselves as having been unfairly treated (cognitive) or experience prolonged anger towards the supplier (emotion). Some DR processes, such as arbitration and litigation, attempt to modify parties’ behaviours by getting them to commit to specific outcomes (behaviour) without attempting to change their perceptions (cognitive) about the conflict situation or to ameliorate negative feelings regarding the other party and themselves (emotions), for example by moving from anger to an acceptance of new realities.[7] Processes, such as facilitation and mediation, attempt in varying degrees to deal with all three dimensions of conflict.[8]

The emotional and psychological dimensions of conflict are related to the grieving process which parties experience after a significant loss. Thus, where a person has suffered the loss of a limb, their job or their hopes for being able to purchase a house, they are likely to experience some or all of the stages or phases of grief.[9] These include shock, denial, anger, bargaining and sadness, but they do not occur in a neat linear fashion. For a spouse in shock (‘I don’t know how this happened’) or denial (‘They’re just going through a phase, everything will be fine’) after the breakdown of a relationship it is not easy to negotiate or make appropriate decisions, for example in relation to the division of matrimonial property.[10] The grief and loss process may have to be managed before the respective party can say with conviction, ‘I just want to get on with my life and dividing up the property will help with that’. Once a person has reached the ‘acceptance’ stage of the grieving process they are more able to create new meanings for their lives, and to participate authentically in dispute resolution processes.[11]

Parties’ beliefs and the meanings they attach to past events affect all the dimensions of conflict and disputes. Where parties are acting out in contested situations their attitudes and behaviours are predicated on beliefs about what they deserve or can reasonably expect, based on life experiences, on what others have told them or on their professional advice. For example, changes in welfare regulations may lessen the benefits for senior citizen Ruby. However, Ruby may have a strong sense of entitlement to benefits, based on her many years of work, on serving with distinction in the military and on paying taxes throughout her life. These together create subjective beliefs as to what is right and wrong in her situation and brings her into conflict, and potential dispute, with welfare agencies and government. Beliefs are not easy to change. However, a conciliator or other intervener who acknowledges Ruby’s beliefs and understands their significance for her perceptions and behaviour may be able to assist her through the conflict process.

An understanding of the dimensions of disputes, of their potential to escalate and of the loss and grief conflicted parties might be experiencing, provides insights for lawyers into what particular DR process will respond most appropriately to their clients’ needs.[12] Some processes are suited to dealing with substantive needs, such as payment of money or assertion of intellectual property rights, thereby forcing one or both parties to modify their behaviours. Some deal better with the psychological and emotional factors, referred to above, such as shock, anger and frustration over past behaviours and current recalcitrance. Yet others deal with cognitive issues relating to perceived unfairness or powerlessness by providing procedural steps which convey respect and dignity, productive avenues of communication and the maintenance of ongoing relationships. The law has traditionally been inclined to focus on the substantive and procedural needs of clients, whereas some of the processes in the contemporary DR matrix aim to engage as well with the psychological and emotional dimensions.

[1] The term itself derives from Latin, meaning ‘to strike together’.

[2] See John Paul Lederach, Preparing for Peace: Conflict Transformation Across Cultures (Syracuse University Press, 1995) 8-9.

[3] While this is a truism, studies of animals in conflict situations show how they elicit ‘mediation’ and ‘arbitration’ behaviours from other animals. See generally Frans de Waal, Our Inner Ape (Granta Books, London, 2005) and Frans de Waal (Stephen Macedo and Josiah Ober (eds)), Primates and Philosophers: How Morality Evolved (Princeton University Press, 2009).

[4] On managing these issues see Laurence Boulle, Tina Hunter, Michael Weir, Kate Curnow, ‘Negotiating Conduct and Compensation Agreements for Coal Seam Gas Operations:  Developing the Queensland Regulatory Framework’ 17 (2014) The Australasian Journal of Natural Resources Law and Policy 43.

[5] For leading Australian and international texts on conflict and its management see footnote 1 of Chapter 5 of Laurence Boulle and Rachael Field, Australian Dispute Resolution Law and Practice (Lexis Nexis, 2017).

[6] See Bernard Mayer, ‘How We Experience Conflict’ and ‘What Causes Conflict’ in The Dynamics of Conflict: A Guide to Engagement and Intervention (Jossey-Bass, 2nd ed, 2012) 3-4 and 8-10 respectively. See also Laurence Boulle, Mediation: Principles Process Practice (Lexis Nexis, 3rd ed, 2011) 108-9.

[7] See Robert I Simon and Daniel W Shuman (eds), Retrospective Assessment of Mental States in Litigation: Predicting the Past (American Psychiatric Publishing, 2008).

[8] See for example, Ray Friedman et al, ‘The Positive and Negative Effects of Anger on Dispute Resolution: Evidence from Electronically Mediated Disputes’ (2004) 89(2) Journal of Applied Psychology 369.

[9]  A classic text is Elizabeth Kubler-Ross and David Kessler, On Grief and Grieving: Finding the Meaning of Grief Through the Five Stages of Loss (Scribner, 2014).

[10] Or in relation to parenting matters:  Joan B Kelly, ‘Parents with Enduring Child Disputes: Multiple Pathways to Enduring Disputes’ (2003) 9(1) Journal of Family Studies 37.

[11] See Esther Davis, Frank Deane and Geoffrey Lyons, ‘Prediction of Individual Differences in Adjustment to Loss: Acceptance and Valued-Living as Critical Appraisal and Coping Strengths’ (2016) 40(4) Death Studies 211; and Froma Walsh, Strengthening Family Resilience (Guilford Publications, 2015).

[12] See for example, Penny Lakey, ‘An Exploration of Multiparty Dispute Resolution When the Impending Death of a Loved One Creates an Escalation in Family Conflict’ (2007) 10(3) ADR Bulletin 56

.

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.

What was Alternative Dispute Resolution (ADR)? What is Dispute Resolution (DR)? (An excerpt from Australian Dispute Resolution Law and Practice)

This is an 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 support the move towards making the language of dispute resolution more contemporary by referring to DR rather than ADR. We look forward to your comments and responses as we post a number of excerpts over the month of December. Rachael and Laurence

Defining dispute resolution is not an easy task.[1] There are many different processes that fall under the ambit of ‘DR’, and to complicate matters there is much internal diversity within processes which have the same label. When DR processes such as mediation and conciliation started to be widely used, they were collectively referred to as ‘alternative dispute resolution’ (ADR).  The acronym ADR originally denoted processes developed, intentionally or organically, as alternatives to those provided by courts and tribunals in formal justice systems.[2] Initially, there was angst and argument about what should be included in, or excluded from, the term.[3] While ADR was originally associated with mediation, it came to include other processes such as neutral evaluation and case appraisal. This resulted in NADRAC (the National Alternative Dispute Resolution Advisory Council) defining ADR as,

… an umbrella term for processes, other than judicial determination, in which an impartial person assists those in a dispute to resolve the issues between them. ADR is commonly used as an abbreviation for alternative dispute resolution, but can also be used to mean assisted or appropriate dispute resolution. Some also use the term ADR to include approaches that enable parties to prevent or manage their own disputes without outside assistance.[4]

The NADRAC approach emphasised that ADR was understood in contradistinction to litigation. This reinforced rhetorical dichotomies in the literature around formal versus informal processes; speedy versus slow processes; processes that invite direct party participation versus those that exclude party participation; processes controlled by the parties versus those controlled by third parties; expensive versus inexpensive processes; coercive versus consensual processes; binding versus non-binding processes. These sorts of binary distinctions have always been simplistic and confining, and have long (and rightly) been acknowledged as such. These distinctions were based on false assumptions about levels of consistency and unity within ADR processes,[5] which obscured ‘the many and important distinctions between different ADR processes, lumping them together as if ADR was one homogenous institution set apart from the courts’.[6] As a result, ADR processes were depicted as ‘the other’ (to litigation), bestowing a primacy on litigation that was historically and socially misleading in terms of the extent of litigation’s contribution to overall dispute resolution systems.[7] There is, however, another sense in which litigation enjoys a normative ‘primacy’ in legal dispute resolution: it has operated, and continues to some extent to operate, as an ultimate point of reference for all other dispute resolution processes and it has historically cast a shadow over their operation.

In the early 1990’s Julian Riekert, one of Australia’s founding writers in the area, identified three descriptors of ADR: first, ADR as including all forms of dispute resolution other than litigation; second, ADR as including dispute resolution processes that leave the form and content of any settlement to the parties; third, ADR as involving non-litigious processes with the intervention of an outside party.[8] Riekert’s first definition continued the trend of defining ADR by reference to its alternative status to litigation.[9] ADR was thus positioned for many years as the alternative option, and almost in opposition, to litigation. As a result, ADR processes and practices were viewed by some, particularly in the practising legal profession, with suspicion and distrust.[10] To redress these perceptions there were suggestions that ADR should be understood as signifying ‘additional’,[11] ‘assisted’,[12] ‘appropriate’,[13] ‘administrative’[14] or ‘amicable’ dispute resolution.[15]

It is fair to say, then, that the use of the word ‘alternative’ as a descriptor for DR has long been inaccurate.[16] The processes understood to fall within its ambit are no longer  ‘alternative’ or ‘marginal’ because they are in fact often the primary, dominant or mainstream systems for resolving and managing conflicts and disputes, and are often sought out by the parties or mandated by DR clauses or by legislation.[17] Indeed, litigation might now be argued to be the true ‘alternative’ to the mainstream treatments of disputes, notwithstanding its normative influence in law and dispute resolution referred to above. Nevertheless, the term ADR still has currency and the durability of the acronym has meant that proposals for the adoption of terms such as those listed above, or other examples such as ‘innovative’ dispute resolution, or ‘non-adversarial justice’, have not gained the traction that might be expected or that they might deserve.[18]

While the term ADR remains widely used and recognised, and while it is still the case that formal legal and justice systems continue to some extent to privilege litigation, there is now less anxiety over definitional questions, and over what is and what is not included in generic terms in the field. It is propitious that binary distinctions between ADR and litigation, and their respective attributes, are generally no longer regarded as appropriate. Litigation too has lost much of its assumed consistency and uniformity and currently has its own variations, adaptations and mutations, as we discuss in Chapter 10. Moreover the ‘institutionalisation’ of ADR has brought it within the purview of courts, tribunals, agencies and other aspects of formal justice processes where it is one component of overall systems for and approaches to assisting people in dispute to resolve and manage their matters. In other words, with ADR now established within courts, government agencies and private enterprises it must be viewed as part of the overall schema of dispute handling in the legal system and in society more broadly. Today we have a great diversity of processes available both within and outside the courts. There is also a realisation that whilst most disputes are not dealt with in litigation, non-litigated disputes are managed, at least to some extent, in the ‘shadow of the law’, that is they are informed by what would or could happen if the matter were litigated.[19]

Our approach in this book is to avoid the term ‘alternative’ in identifying dispute resolution processes other than litigation, and simply to refer to ‘dispute resolution’ (DR) as encompassing all processes, including litigation.[20] ADR remains an historical term of art, recognised and understood by many within the legal and justice communities, but it is no longer a relevant or accurate descriptor for the future of DR practice, especially in legal contexts. It is used in this text only to reflect its use in cases or legislation or where its historical legacy makes it appropriate. When needing to distinguish non-litigious processes we refer to non-litigation DR (NLDR).

[1] Eric Green was arguably the first to use the term ‘alternative dispute resolution’. See Eric Green, ‘Settling Large Case Litigation: An Alternative Approach’ (1978) 11 Loyola of Los Angeles Law Review 493. The Australian Productivity Commission has also recommended that common definitions about legal services be adopted in order to ‘maximise the usefulness of legal services data sets, (and) reform in the collection and reporting of data’: see recommendation 25.2 in Productivity Commission, Access to Justice Arrangements, Report No. 72 (Australian Government, 2014). See also Australian Law Reform Commission, Review of the Adversarial System of Litigation ADR — its Role in Federal Dispute Resolution, Issues Paper 25 (ALRC, 1998) section 2; Law Reform Commission, Ireland, Report on Alternative Dispute Resolution: Mediation and Conciliation, LRC 98-2010 (LRC Ireland, 2010), http://www.lawreform.ie, citing George Applebey, ‘What is Alternative Dispute Resolution?’ (1991-1992) 15 Holdsworth Law Review 20.

[2] See Frank EA Sander, Varieties of Dispute Processing, Address given at the Pound Conference on Causes of Dissatisfaction with Justice (1976), reprinted in A Leo Levin and Russel R Wheeler (eds), The Pound Conference: Perspectives on Justice in the Future: Proceedings of the National Conference on the Causes or Popular Dissatisfaction with the Administration of Justice (West Publishing Co, 1979).

[3]  Most notable were debates about whether arbitration could properly be included within the suite of ADR processes.

[4] NADRAC, Dispute Resolution Terms: The Use of Terms in (Alternative) Dispute Resolution, (Australian Government, 2003), 4. See also NADRAC, Your Guide to Dispute Resolution (Australian Government, 2012), 5.

[5] Brunet, for example, noted that ‘ADR is not a unitary concept’: Edward Brunet, ‘Questioning the Quality of Alternative Dispute Resolution’ (1987) 62 Tulane Law Review 1, 10.

[6] Robert A Baruch Bush, ‘Defining Quality in Dispute Resolution: Taxonomies and Anti-Taxonomies of Quality Arguments’ (1989) 66 Denver University Law Review 335, 343.

[7] For example, Galanter has noted ‘the negotiated settlement of civil cases is not a marginal phenomenon; it is not an innovation; it is not some unusual alternative to litigation’: Marc Galanter, ‘A Settlement Judge Not a Trial Judge: Judicial Mediation in the US’ (1985) 12 Journal of Law and Society 1.

[8] Julian Riekert, ‘Alternative Dispute Resolution in Australian Commercial Disputes — Quo Vadis?’ (1990) 1 Australian Dispute Resolution Journal 31.

[9] This, however, did not include socially disapproved methods of dispute resolution such as coercion. Another critique of the word ‘alternative’ is that it implies deviance from a norm, as in ‘alternative life style’; in this sense, too, it was argued that labelling the new developments as ‘alternative’ processes was unfortunate. However, for others the concept ‘alternative’ carried the positive implication of difference from convention. In common parlance ‘alternative’ has a wide range of connotations, from approving notions of something different to the staid and conventional, to derogatory senses of deviation from the accepted and normative.

[10] Owen M Fiss, ‘Against Settlement’ (1984) 93 Yale Law Journal 1073 commenting at 1075: ‘I do not believe that settlement as a generic practice is preferable to judgment or should be institutionalized on a wholesale and indiscriminate basis. It should be treated instead as a highly problematic technique for streamlining dockets.’

[11] Sir Laurence Street, ‘The Language of Alternative Dispute Resolution’ (1992) 66 Australian Law Journal 194. Street’s preference for the term ‘additional’ did not imply rejection of emphasis on litigation, which he considered a ‘fundamental element’ of western democracy. Rather, he viewed ADR as ‘supportive’ of litigation. See also David Spencer, Principles of Dispute Resolution (Lawbook Co, 2011), 3.

[12] See, for example, Paul Lynch, ‘The Implementation of Assisted Dispute Resolution in Taxation of Costs in Queensland — Amendments to Order 91 of The Rules of the Supreme Court of Queensland’ (1995) Queensland Law Society Journal 53.

[13] The term ‘appropriate dispute resolution’ is still used in Victorian legislation, keeping the acronym alive see, for example, the Civil Procedure Act 2010 (Vic), s 77. See also Department of Justice, Victoria, New Directions for the Victorian Justice System 2004–2014: Attorney General’s Justice Statement (Victorian Government, 2004), 33 where it is said that ADR is increasingly referred to as ‘appropriate dispute resolution’, ‘in recognition of the fact that such approaches are often not just an alternative to litigation, but may be the most appropriate way to resolve a dispute’, citing Chapter 4 of the Victorian Law Reform Commission, Civil Justice Review: Report (Victorian Government, 2008), 212.

[14] This expression is more limited in that it refers to steps taken during the performance of a construction project by those responsible for delivery of the project rather than by outside third parties. See, for example, Douglas Jones, ‘A Critical Analysis of the Means Commonly Adopted to Avoid Disputes in the Construction Industry’ (1998) 14 Building and Construction Law Journal 31, 33.

[15] See, for example, David Hollands, ‘FIDIC’s Provision for Amicable Settlement of Disputes’ (1989) 6 (1) International Construction Law Review 33. See also the International Chamber of Commerce, Rules of Arbitration, in force as from 1 January 2012 which refer in Appendix IV on Case Management Techniques to ‘amicable’ dispute resolution methods, http://www.iccwbo.org/products-and-services/arbitration-and-adr/arbitration/icc-rules-of-arbitration/.

[16] In some contexts ‘ADR’ is part of a broader concept of ‘resolution processes’ for example the Civil and Administrative Tribunal Act (NSW) 2013, s 37 is headed, ‘Tribunal to promote use of resolution processes’ and permits the Tribunal  to use (or require parties to proceedings to use) any one or more ‘resolution process’. It defines ‘resolution process’ as any process, including … alternative dispute resolution, in which parties are assisted to resolve or narrow the issues between them.

[17] Anne Bihancov, ‘What is an Example of a Good Dispute Resolution Clause and Why?’ (2014) Evaluation of ADR Paper 3 available from http://www.civiljustice.info/adreval/3.

[18] In 1994 McLaren and Sanderson proposed the use of the term ‘innovative dispute resolution’: see Richard McLaren and John Sanderson, Innovative Dispute Resolution: The Alternative (Carswell Thomson Professional Publishing, 1994). Another formulation is ‘less-drastic’ forms of dispute resolution: see William Fox, International Commercial Agreements (Kluwer Law International, 3rd ed, 1998), 213. See also, Michael King, Arie Freiberg, Becky Batagol and Ross Hyams, Non-Adversarial Justice (The Federation Press, 2nd ed, 2014).

[19] Robert Mnookin and Lewis Kornhauser, ‘Bargaining in the Shadow of the Law: The Case of Divorce’ (1979) 88 Yale Law Journal 950. But see Carrie Menkel-Meadow, ‘Lawyer Negotiations: Theories and Realities — What We Learn from Mediation’ (1993) 56 Modern Law Review 361 at 371, querying whether Mnookin and Kornhauser are correct in their assessment of how the law influences out of court settlements.

[20] Note the title of NADRAC’s definitions publication changed from Alternative Dispute Resolution Definitions in 1997 to Dispute Resolution Terms: The Use of Terms in (Alternative) Dispute Resolution in 2003. See also Policy Developments, ‘Towards Consistency in ADR Terms’ (1998) 1(1) ADR Bulletin 7.