A Critical Evaluation of the Alternative Dispute Resolution Process

The alternative dispute resolution (ADR) process offers parties in a dispute the opportunity to engage in a non-adversarial, negotiated approach to reaching an agreement without participating in the traditional litigation process. The disengagement with the adversarial litigation system and an increased focus on party involvement with ADR can benefit all parties involved: the disputants, legal professionals, and the wider society.

Key principles such as procedural fairness, access to justice, assistance with non-legal issues, party satisfaction and confidentiality support the contention that ADR can produce multi-faceted benefits. Indeed, alongside these advantages, there are other consequences that arise from ADR. Some criticisms against ADR include the privatisation of justice, power imbalances, and the prevention of access and stagnancy to the development of the law. While there are various types of ADR methods, mediation will be the focal ADR method that will be evaluated in this article.

"ADR offers creative and broad solutions that the courts would normally not consider."

Lawyers as 'Gatekeepers' of Justice

In the contemporary legal profession, many lawyers have assumed the role of ‘problem solvers’.[1] Those within the legal profession regularly participate in problem-solving tactics, such as settlement negotiations, to assist their clients and other parties involved in reaching an agreement outside of the court.[2] As a result, many lawyers have a practical familiarity with ADR related skills.[3] When parties engage in an ADR process, such as mediation, they will generally be accompanied or represented by lawyers who can have substantial influence in steering conversation, promoting negotiation and contributing to their clients' fulfilment in a mediation session.[4]

Moreover, since ADR offers creative and broad solutions that the courts would typically not consider, lawyers invested in reaching solutions for their clients may find more satisfaction and fulfilment in their work.[5] This is because mediations are more likely to lead to collaborative and positive outcomes than the competitive nature of litigation, and the standard 'win-win' outcome in mediation is often preferred by legal professionals partaking in mediation.[6]

Mediation, Empowering the Disempowered

Mediation is an ADR process that also empowers the disputants by allowing them to partake in constructive dialogue that is facilitated and encouraged by a third-party mediator; this can positively enhance the parties' outlook on the legal system and promote party satisfaction and fairness.[7] Party satisfaction with respect to the outcomes of mediation, is arguably the primary benefit of mediation since in the mediation process parties can attain outcomes they could not have attained otherwise.[8]

"[A] path is paved for fair dialogue to be exchanged...where the "genuine human needs" of the disputants are prioritised and valued."

Unlike litigation, the environment and process of mediation allows parties to express their reasoning and emotions about the dispute and allows parties to discuss their future relationship.[10] This is an instance of procedural fairness being nurtured in mediation as the path is paved for honest dialogue to be exchanged between parties, where the "genuine human needs" of the disputants are prioritised and valued.[11] Accessibility is also heightened in ADR processes such as mediation, since they offer cheaper and faster alternatives than litigation.[12] Mediation also permits parties to communicate their interpersonal and emotional concerns to one another. This can provide parties with the prospect of reaching non-legal resolutions such as apologies, sympathy, closure and forgiveness.[13]

Imbalanced Power Relations

Notwithstanding these benefits, mediation can become futile in instances where power imbalances between the parties exist. Indeed, it is the mediator's responsibility to ensure that power imbalances are controlled during the mediation process, but at times this can be challenging or impractical altogether.[14] This is generally the issue when one party in an ADR process has greater familiarity, experience, and support with the process than the other party.[15] This can become problematic as it may inhibit a person's access to discussion and communication while limiting their expression and identification of their interests in a dispute.[16] This is a circumstance where mediation would be undermined, and the lack of scrutiny and openness would allow 'stronger' parties to exploit their power.[17]

The Privatisation of Justice

ADR is also seen to be advantageous due to the privacy it offers, compared to the public court system.[18] This is significantly appealing to parties that may have their reputation at risk by attending a public court.[19] While the confidential nature of mediation may provide a sense of security, it occurs in a private and secluded manner during which public scrutiny is denied.[20]

"Confidentiality comes at a cost."

ADR processes like mediation "permit 'justice' to be carried out behind closed doors" where the proper checks and balances that safeguard the law are destabilised.[21] Confidentiality comes at a cost. The outcome reached by parties in mediation are not appropriately assessed, and at times, the mediator's use of power remains discrete.[22] Additionally, it has been argued that the privatisation of justice impacts the progression of the law and contributes to the law's stagnancy.[23] Some have been critical towards this stagnancy of case law since it delivers a form of 'second class justice' since disputants are being turned away from the courts, which not only hinders their access to the court but encourages compromises instead of upholding rights.[24]

Societal

ADR processes such as mediation have played a substantial role in promoting and achieving out of court settlements.[25] Within the last decade, our society has witnessed the emergence, enforcement and promotion of legislation that supports ADR and out of court settlement.[26] In some instances, there are statutory requirements for parties to attend an ADR process before their issue is brought to court.[27] Offering disputants the opportunity to engage in ADR processes can assist them at a micro level and relieve pressure on the courts at a macro level.[29]

Footnotes

[1] Warren Pengilley, 'Alternative Dispute Resolution: The Philosophy and the Need' (1990).

1(2) Australian Dispute Resolution Journal 81, 90.

[2] Ibid.

[3] Ibid.

[4] Tina Popa and Kathy Douglas, 'Best for the Protagonists Involved: Views from Senior Tort Lawyers on the Value of Mediation in Victorian Medical Negligence Disputes' (2019) 45(1) Monash University Law Review 333, 336.

[5] Pengiley (n 1) 91-92.

[6] Ibid 92.

[7] Popa and Douglas (n 4) 335.

[8] Just Balstad, 'What do Litigants Really Want? Comparing and Evaluating Adversarial Negotiation and ADR' (2005) 16(4) Australasian Dispute Resolution Journal 244, 246.

[9] Popa and Douglas (n 4) 334.

[10] Ibid 336.

[11] Ibid 335. Balstad (n 10) 246.

[12] Popa and Douglas (n 4) 390.

[13] Ibid 336.

[14] Katrina Bochner, 'Alternative Dispute Resolution and Access to Justice in the 21st Century' (2019) 40(1) Adelaide Law Review 343, 349.

[15] Ibid.

[16] Ibid.

[17] Ibid.

[18] Popa and Douglas (n 4) 336.

[19] Ibid.

[20] Bochner (n 17) 350.

[21] Ibid.

[22] Simpson (19) 18.

[23] Ibid.

[24] Popa and Douglas (n 4) 335.

[25] Ibid 338.

[26] Ibid.

[27] John K Arthur, 'Statutory Requirements to Attend or Use ADR: Victoria' (2014) 1(1) Australian Alternative Dispute Resolution Journal 12, 12.

[28] Peter Condliffe and John Zeleznikow, 'What Process Do Disputants Want - An Experiment in Disputant Preferences' (2014) 40(1) Monash University Law Review 305, 306.

[29] Condliffe and Zeleznikow (n 32) 306.

Yasmin Elbouch is a Law, Criminology and Sociology student at La Trobe University. She is passionate about social justice and a Publication's Officer at MLN.