On the passing of Frank Sander: A critical, grateful view from the Antipodes

Frank Sander, dispute resolution visionary and hero, recently died, aged 91.

I thought it would be worthwhile exploring some of Sander’s achievements and impact from an Australian civil justice perspective. In particular, I will consider the relevance of  Sander’s multi-door court house idea to Australia today.

For many years, I have been teaching Non-Adversarial Justice to undergraduate law students at Monash University. The wonderful, far-ranging discussions we have in those classes have given me the chance to reflect on the impact of Sander’s work here in Melbourne, Australia.

Sander was a professor of law and dispute resolution at Harvard University in the USA. He is associated with developing the ‘multi-door courthouse‘ idea: that a single court could triage the civil matters that came before it and provide a range of dispute resolution services (both litigious and settlement-based)  depending on what is needed in each case. A multi-door courthouse is a dispute resolution centre where a grievant, with the help of a screening officer at the court, is directed to an appropriate process or series of processes. This approach is underpinned by the view that court costs and delay are increased by ill-matched disputes and processes.

In many ways the multi-door courthouse is the civil equivalent of the criminal problem-oriented court, which aims to reduce re-offending by addressing the underlying causes of criminal behaviour.


Multi-door courthouse: right for Australia? image Credit: Dan Boss, Exit at the Acropolis Museum, Creative Commons

Sander is also credited with developing the now ubiquitous idea of fitting the forum to the fuss (that each matter should use an appropriate dispute resolution process). In Australia in 2018, this an uncontroversial goal, which, unfortunately, is still a long way from reality in the civil justice system.

To develop ideas that become pervasive and which define a field has a something to do with luck (timing, place, race, gender etc). But not every lucky person has clear thinking, vision and the ability to convince others. Sander was clearly an ideas man and we listened. The impact of his thinking on civil justice systems and court practice is significant, even in far-away places such as Australia.

Sander gave a famous speech in which he first set out his ideas on the civil justice system at the 1976 Pound conference held in St Paul, Minnesota and organised by then Chief Justice of the Supreme Court, Warren Burger. Many, including Jeffrey Stempel regard this conference as the genesis of the modern ADR and court reform movement.  Stempel argues that this conference was notable in its criticism of the litigation process, its promotion of ADR by its “all star cast” including the cream of the American court and legal establishment as well is the publishing of its proceedings in West’s Federal Rules Decisions, guaranteeing wide exposure of the conference’s pro-ADR sentiments, especially to the nation’s federal judges.  The proceedings of the Pound Conference can be found in ‘National Conference on the Causes of Popular Dissatisfaction with the Administration of Justice’ (Apr. 7-9, 1976) in 70 F.R.D. 79 (1976). The 1976 conference has, of course, spawned the contemporary Global Pound conferences.

Sander’s speech was at the heart of what the conference acheived. According to Diane Levin, at the 1976 Pound Conference, Sander

reminded conference participants of the limitations of traditional litigation with its “use of a third party with coercive power, the usually ‘win or lose’ nature of the decision, and the tendency of the decision to focus narrowly on the immediate matter in issue as distinguished from a concern with the underlying relationship between the parties.” He urged conference participants to envision alternatives, a “rich variety of different processes, which, I would submit, singly or in combination, may provide far more ‘effective’ conflict resolution.” And he reminded them of “the central quality of mediation”, namely “its capacity to reorient the parties toward each other, not by imposing rules on them, but by helping them to achieve a new and shared perception of their relationship, a perception that will redirect their attitudes and dispositions toward one another.”

This is a call for the integration of ‘ADR’ with the ordinary everyday business of civil courts. (There is a very readable exploration of the origins of Sander’s Pound paper  here).

More than 40 years later, Sander’s call has largely been answered.  We know that settlement has always been part of civil litigation (thanks Marc Galanter for giving us the term ‘litigotitation’). But since Sander gave that speech, various forms of ADR, especially mediation and arbitration, have become part of standard court practice in most jurisdictions. For example, the Supreme Court of NSW offers both mediation and arbitration for civil matters under Parts 4 and 5 of the Civil Procedure Act 2005 (NSW). Referral to ADR can be mandatory in most Australian courts. Court-connected ADR services in Australia are provided by in-house staff or by external service providers.

However, most Australian courts could not be called multi-door courthouses. One reason why, is that formalised dispute resolution screening processes are not in place in most Australian courts. (The NSW Land and Environment Court is a clear exception).

What I think Sander didn’t quite get it right is that his focus was largely on the courts. To my mind, the locus of conflict and dispute resolution is not at the pointy court-end of the dispute resolution pyramid, but the heavier bottom-part. Most people who have a ‘legal problem’ don’t go near a court but choose or are forced to use other methods of dealing with their matter. These methods include direct action such as physical retaliation, seizure of property or removal of offending objects, informal negotiation or exit and avoidance (‘lumping’ the problem). That’s certainly what goes on in my house!

Court-based triage and assessment of problems is going to offer very little to most people who never even conceive of their ‘problems’ as court-worthy nor have the funds to litigate. When researchers measure ADR use, there is always very low awareness of ADR processes in the community and low uptake and use of formal ADR services. Even ADR services are not the only answer.

The multi-door courthouse doesn’t reflect more recent government efforts to encourage efficiency in the civil justice system in Australia and the UK. Pre-action protocols/procedures have been implemented widely in England and Wales following the Lord Woolf Report and more sparingly (but significantly) in Australia. Pre-action procedures encourage early settlement of disputes, full disclosure of information between parties and, where the matter cant be resolved, the narrowing of issues in dispute, but all before proceedings have commenced. Pre-action procedures are important because they force the location of ADR services away from the courts and towards pre-trial services offered by non-court providers or undertaken informally. Tania Sourdin argues that pre-action procedures are a significant shift away from Sander’s multi-door courthouse and towards  a “more modern multi-option  dispute resolution model.”

I would argue that they key idea behind Sander’s multi-door courthouse idea, matching the forum to the fuss, should and does still exist as a guiding principle of Australian civil justice systems. While the location of dispute resolution activity has shifted away from the courts (in Australia at least) Sander’s ideas have shaped the civil justice landscape of our country.

Thank you, Frank.

Aspects of this post are based upon ‘Chapter 7: ADR: Appropriate or Alternative Dispute Resolution’ in King, Freiberg Batagol & Hyams Non-Adversarial Justice (2nd ed, 2014).


Australia, all the way with ADR. Or are we?

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 NSWfor 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?