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THEMODERN LAW REVIEW

Volume 56 May 1993 No. 3

Dispute Resolution:Civil Justice and its AlternativesIntroduction

Cyril Glasser and Simon Roberts

In proposing that civil procedure and alternative dispute resolution should be discussedtogether at the 1992W G Hart Workshop, Terence Daintith let the participants looseon a broad field of dispute processes. But at the same time he identified some closelyinterwoven areas of practice whose relationships had come to be obscured by thedevelopment of separate, parallel conversations.For civil procedure, that array of tools and markers scattered along the path totrial and judgment, the last two decades have brought major changes to the frameworkfor the conduct of litigation across the whole range of civil courts in England. Hereand there particularly notable developments stand out- he new interlocutory ordersestablished in the High Court in support of plaintiffs in cases of commercial fraud,the introduction of the exchange of witness statements, and the small claimsprocedures introduced in the county courts from 1972 and consolidated followingthe Civil Justice Review. Overall the innovations have been such as to raise thequestion as to whether it is possible to make out a common core of civil procedureat all. But against a shifting, irregular background of procedural innovation twogeneral, related, trends are noticeable. First, the triul has receded, becoming a distant .and unlikely prospect, as the focus of attention has shifted to pre-trial activity and .disclosure, and settlement has become more attractive. At the same time, the courtitself has become more involved in pre-trial preparations both as a means of expeditingprogress towards the trial and in orchestrating settlement.Concurrently, there has been since the 1970s a growing number of moves toinstitutionalise alternatives to litigation. Here important examples include: thepioneering of mediation in family disputes by voluntary agencies following proposalsof the Finer Committee in 1974; the importation from North America of communityand neighbourhood mediation schemes; and similar adaptation of alternative disputeresolution procedures (ADR) in the field of commercial disputes. Lawyers didnot generally take a leading part in these initiatives (although there were exceptions),and were at first cautious and non-committal towards them; but latterly they haveshown an increasingly active interest, confirmed in the sponsorship of major reports0 The Modem Law Review Limited 1993 277

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7he M o d e r n Law R e v i e w [Vol. 56by the Law Society and the General Council of the Bar. Judges have also begunto commend these alternatives in unofficial utterances, and the Lord ChancellorsDepartment has a working group looking into alternatives to adjudication. Whilethe nature and institutional location of such alternatives remains extrem ely varied ,and support for them has come from numerous sources and app ears driven by diversemotivations, they have a com mon charac teristic in that they claim to promote decision-making through negotiation, leading to an agreed outcome. Broadly, the m ode ismediation and the objective settlement. So this co ntemp orary institutionalisationof an age old means of intervention, recognisable across m any cultures, needs tobe distinguished from those established alternatives to adjudication found inarbitration and the informal decision-making of Tribunals. But these latter alsofell clearly within the ambit envisaged for the Workshop.While litigation, with its goal in judgme nt, and alternative dispute resolution, withits emphasis on settlement, can be presented as diametrically o pposed paths tow ardsdecision making, this opposition is misleading. Whatever else litigation may be,the fact that in the great m ajority of cases it is discontinued short of judgment andconcluded in settlement means that, like AD R processes, it ultimately revolves aroundnegotiation. So a common approach to understanding litigation and ADR seemsessential. A further direct link between civil litigation and its alternatives is providedby the growing involvement of judges, particularly in the county court, in thesponsorship of settlement. W hether intervening to suggest furthe r bilateral negotia-tion, recommend outside mediation, o r to attempt mediation themselves, judges arebecoming embroiled in the managemen t of negotiations in a w ay which breaks downthe traditional boundary between the med iator and the judg e. A third link betweencontemporary developments in civil litigation and a lternative dispute resolution liesin a comm on attribution of informality of process. T he sm all claims proc edurein the county courts, proceedings before tribunals and interventions directed tow ardsthe spon sorship of negotiations a re depicted as informal in contrast to traditionalsuperior court proceedings. This g eneralisation needs to be carefully exam ined, a sthe nature of the claimed informality in each of these contexts is likely to besignificantly different; and there is no necessary link at all between a tendency toinformality and the disposition to sponsor settlement.In evaluating the chang es taking place in these rapidly evo lving area s of practice,we have to bear in mind the powerful critiques of informalism, and of thedisplacement of the trial through sponsorship of settlement, which were advancedin North America during the 1980s. The first of these critiques, associated withthe work of Abel and Aue rbach,2 points to the expansion of state power associatedwith the movement towards informality, and suggests that the position ofdisadvantaged litigants is seldom improved, and typically worsened, where state-sponsored informal procedures are substituted fo r formal adjudication. T he samearguments have been advanced by F reema n in respect of the proposed introductionof a family court in E ngland.3 These argum ents need to be taken seriously,I Alternative D ispute Resolution, A Report Prep ared by Henry Brown f o r the Courts and Legal ServicesCommittee, Law Society, Legal Practice Directorate, July 1991; Report of the Comm ittee on AlternativeDispute Resolution, General Council of the Bar, October 1991. Beside the Chairman, Sir Roy Beldam,the members were: Anthony Scrivener QC, Philip Naughton QC, Christopher Chandler (Chairman ofthe Law Society ADR Working Party) and Jane Hem (of the Law Socie tys Legal Practice Directorate).See (1992) 55 MLR 258 for a comment on the Beldam Report.2 Richard L. Abel, llze Politics of Informal Justice (New York: Academic Press, 1982); Jerold S. Auerbach,Justice without Law? (New York: Oxford University Press, 1983).3 Questioning the Delegalization Movement in Family Law: Do We Really Want a Family Court? inJ.M . Eekelaar and S .N . Katz (eds), 7he Resolution ofFam ily C onflict(Toronto: Butterworths, 1 984) p 7 .278 0 The Modern Law Review Limited 1993

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May 19931 Introductionparticularly in considering procedural changes driven by a perception of overloadin agencies of formal adjudication.Opposition to the encouragem ent of settlement in preference to adjudication hasbeen based upon contemplated harm to the polity as a whole, as much as upondisadvantage to particular categories of litigant. H ere the classic argumen t is thatadvanced by Fiss4 who sees in the negotiation process itself a tendency tocom prom ise key legal and political values. F or him , the ro le of judges in resolvingdisputes is secondary to their function of re-stating important public values by m eansof judgm ent. Th rough judgme nt the core repertoire of norm s in society is publicisedand refurbished. W ith the substitution of settlement, the opportunity o f the courtsto articulate central values is lost, and a s these values fall away from public attentionthe stability of the polity is threatened. F iss argument is founded in some contestab leassumptions about the nature of order and the mechanisms whereby pattern isreproduced in the social world. Clearly, also, there are differences - ot least,the absence of a constitutional judiciary - etween the perceived role of the judgesin England and North Am erica. But the general uneasiness with settlement whichFiss expressed has echoes in, if it does not exactly reproduce, the concern aboutcompromise voiced long ago by Jeremy Bentham, of which William Twiningsessay in this issue provides a timely reminder.5 Overall, changes in the nature ofcourts and the judicial ro le, and altered patterns of resort to judgm ent, deserve tobe carefully examined.At the Workshop, Terry Daintiths aims in bringing together and minglingcontemporary discussions of civil procedure and alternative dispute resolution we relargely realised. In the papers presented, and in ensuing discussion, three broadsubjects were addressed: the changing characteristics of civil procedure; third-partydecision making beyond the courts; and settlement processes in their variouslocations. But a number of common themes repeatedly ran across and connectedthese three conversations.Th e extensive discussion of civil procedure focused on transformations in the pre-trial phase of superior court litigation, with an emphasis upon the extent to whichthe trial has now ceased to be the centre-piece of litigation. This developmentwas reflected in the contributions of Sir Leonard Hoffmann , Cy ril Glasser, AdrianZuckerman and Wendy K ennett. Sir Leonard Hoffmanns address provided the bestrecent conspectus of modern developments in English civil litigation, highlightingthe importance of the increasing adoption of new discovery techniques, especiallyin aid of the development of powerful interlocutory remedies. These were alsoemphasised by Glasser and Zuckerma n, the latter calling for a m ore coheren t policytowards holding the balance between the conflicting interests of the parties. W hatwas unfortunately m issing he re was any examination of correspond ing changes incounty court litigation, w here from the 1970s the heart of the action has similarlyshifted to the pre-trial phase.In linking procedural structures to the relationships of the professionalsorchestrating litigation, and noting a shift in the balance of power between barristersand solicitors, Glasser touched on the question of power relations between differentprofessional groups which came up repeatedly in different contexts during theWorkshop. Th is issue provided the explicit focus of John Flood and Andrew C aigerspaper on arbitration in construction disputes ,which examined the implications ofthe tensions between lawyers and other professional grou ps in this are a of practice.4 0. Fiss, Against Settlement (198 4) 9 3 Yale LJ 1073.5 Se e pp. 380-392 below.0 The Modern Law Review Limited 1993 279

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[Vol. 56%e Modern Law ReviewSimilar tensions seem sure to proliferate as lawyers and others com pete to providealternative modes of intervention, such as mediation.Hazel Genn returned the attention of the Workshop to the implications ofinformalism in reflecting upon empirical studies she had made of Tribunals dealingwith welfare benefits, immigration disputes, employment disputes and detentionunder mental health legislation. Her conclusions, particularly on the impact ofrepresentation on tribunal decision-making and outcomes, reinforce the findingsof Abel and Auerbach in North A merica a decade ago that procedural informalityseldom operates to improve the position of disadvantaged litigants.In his introductory report at the beginning of the Workshop, Mauro Cappellettilinked together contem porary change in civil procedure and the fashion for alternativedispute resolution across a num ber of jurisdictions. His persistent, justified concernwith problems of access has particular local resonance in the context ofcontemporary proposals to change the arrange ments for the provision o f legal aid.In subsequent discussion at the Workshop participants again and again cam e backto the pursuit of settlement and a retreat from the traditional trial as the essentiallink between ADR and contemporary strands of procedural change. Examining thediverse forms of intervention under the common label of alternative disputeresolution, Simon R oberts identified three principal locations of attempts to reachsettlement. T hese were: party negotiations, early-stage law yer negotiations and thethreshold of the court. Each of these contexts indicated a different locus of controlove r the process - he parties, their legal representatives, court personnel - ndhad their ow n implications for any form of third-party intervention. Court-sponsoredattempts at settlement provided a com mon interest fo r participants as they tend tobe seen both as procedural innovations and as instances of alternative disputeresolution. The problem atic nature of court-linked AD R was underlined by RichardIngleby . Court-based mediation schem es in Australia provided the subject of a paperin which he reinforces earlier findings that mandatory mediation can seldom beadvantageous to litigants.Lawyer negotiations provided a further focus of common interest around w hichboth major themes of the W orkshop came together. H ere Ca rrie Menkel-Meadowspaper is a forceful reminder of the close attention which negotiations have receivedin the professional and scholarly literature in North Am erica, and of their neglectover here. Whatever the nature of lawyer negotiations, or their relationship tolitigation processes, neither can be fully understood if looked at in isolation fromthe other. O verall, we know too little about lawyer negotiations. How do most lawyerssee the relationship between settlement-seeking and litigation, given that even whenthey embark on litigation the chances are that the case w ill be concluded sho rt ofjudgement? What will be the effect upon lawyer negotiations of a growinginvolvement of judges in the sponsorship of settlement?As the Workshop proceeded, it became clear that a variety of disparate, notnecessarily consistent, imperatives drive procedural change and innovative disputeprocesses. These include: the desire of disputants to avoid the domination ofprofessional advisers and to maintain control over decision-making; the attemptsof classes of litigants to avoid the psychological and eco nom ic costs of proceedingto trial; the efforts of competing professional groups to mark out for themselvesrecognised areas of work; grow ing pressure of business on the courts, forcing thejudiciary into innovative case management practices; and the ambition of governmentsto maintain control of the costs incurred in the provision of civil justice.There w as also a recognition of the presence of apparently contradictory messagesconcerning the trend of disputing and the habits of disputants. On the one hand,280 0 The Modern Law Review Limited 1993

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May 19931 Introductionthe volume of civil litigation seemed undoubtedly to be growing;6 and theperception of this increase was being signalled in increasingly desperate calls fromsenior members of the judiciary for more courts and further judicial appointments.But at the same time there were signs of disenchantment with the traditional trial-oriented mode of disputing on the part of litigants, and a shift towards settlement-directed processes.Whatever the underlying direction in the volume of litigation, there is considerableevidence of changes in the nature of judicial involvement in dispute processes. Thisis revealed in increasingly active judicial supervision of the preparations for trial;if the courts once provided a potent but immobile backdrop against which partiesprepared for trial in their own way in their own time, that is no longer the case.Court personnel are also assuming increasingly managerial postures in seeking tosponsor settlement. There are early signs that some judges would like to act asmediators rather than decision-makers. So even if the role of the trial itself is recedingas the focus of the parties endeavours, the courts are increasingly reaching outwardsas they involve themselves in settlement processes which once seemed firmly inthe private sphere. These changes make it imperative to invoke the broad labelsof informality and settlement with great care. The changes now observable incivil procedure, and the existing procedural regimes before Tribunals represent verydifferent strands of informalism; and different again is the informalism involvedin the move away from third-party decision making towards bilateral negotiationsand mediated processes. Processes of settlement controlled by the parties themselvesmust also be carefully distinguished from those undertaken in lawyers offices, orunder judicial surveillance on the threshold of the court.Another part of the picture reveals signs of change in the nature of legal practice.Even before lawyers were showing an interest in alternative dispute resolution, therewere indications of increasing self-consciousness abut their role in settlement-seekingactivity and lawyer negotiations generally. Now, as Roberts suggests in his paper,there are early moves on the part of lawyers away from traditional partisan andrepresentative roles towards neutral advisory and mediatory intervention.Turning to alternative dispute resolution, the most important developments surroundmoves to institutionalise mediation alongside bilateral negotiation and third partydecision as a prominent, approved mode of handling disputes. Here the future isuncertain, both as to the institutional framework for mediation and as to whatmediation is going to be. Vigorous efforts are being made to establish mediationas an autonomous form of professional intervention, with the carefully circumscribedgoal of facilitating negotiations. In this connection a session at the Workshop lookedat the increasingly sophisticated programmes for selection, training and accreditationof mediators which voluntary agencies are developing. But the precarious fundingof these agencies places these programmes and the institutional arrangements formediation as a whole in doubt. Government funding for a national network ofmediation agencies, parallel to the courts, seems a remote prospect at present, evenif a consensus were to emerge that such an institutional framework were desirable.This picture is complicated by parallel attempts of existing professional groups-for example, lawyers and probation officers- o co-opt mediation and absorb itinto existing practice. If these efforts are successful, mediation looks set to becomemore a mode of delivering existing forms of specialist help than an autonomousform of professional intervention directed towards facilitating joint decisions.6 M . Galanter, Law bounding: Legalisation Around the North Atlantic, (1992) 55 MLR I , at p. 8-1 1 .

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