There is no doubt that Hazel Genn’s critical appraisal of Alternative Dispute Resolution (ADR) is a sobering reality-check. Genn shows us that championing ADR as a panacea to costly court processes is not only empirically troublesome, but also compromises the foundational principles of the modern judicial system.
As Genn demonstrates, compelling parties to undertake ADR, which is often a confidential process, rather than allowing parties to have their rights vindicated in public, norm-setting institutions of the courts, has big implications for access to justice, and the development of the common law itself.
In doing so, she offers a much needed critique to the present-day push by policy-makers (and some members of the judiciary) diverting cases away from the courts.
But Hazel Genn’s answers to the questions of ‘why Woolf Reforms’, ‘why ADR’, and ‘why now’, are rather unsatisfactory. Genn argues that the significant motivations behind recent policy announcements boil down to the curse of postmodernism, and its radical scepticism of facts, objectivity and truth.
Whilst I share Genn's dislike for postmodernism, it was quite surprising to find such a strong argument, willing to reduce such major changes to the influence of this particular strand of thinking. I don’t doubt that post-modernism has been influential as an anti-court discourse, but the underlying crisis of the civil justice system seems to have deeper and more material roots than Genn suggests.
The problems of cost, complexity and delay in the civil justice are, after all, not novel. Justice Chief Martin noted in a speech delivered last year that concern about the accessibility to the courts was an issue as far back as 1905. So to lay the blame with postmodernism, as Genn does, is a red herring in my view. It mistakes symptoms for causes.
What is about the nature of the court system, and the society in which judicial decisions are meted out, that has undermined trust in judicial institutions? Why does an anti-court discourse elicit such sympathy and acceptance today? In what respect is it qualitatively similar or different to previous times?
These questions point to something more fundamental than a mere intellectual fad. Inquiry into these questions, I believe, would reveal a lot more about what's really going on in the civil justice system and judicial system more generally.
To my mind, Genn overlooks that fundamental presumption of the entire debate in civil justice system more generally, the political and economic environment in which these changes have taken place - namely neoliberalism. This doctrine, both in theory and practice, was a response to global economic crisis in the 1970s. Neoliberalism as a theory is often synonymous for free-market or laissez faire economic policy, deregulation and ‘user pays’.
One key ideological element of Neoliberalism is that a ‘big government’, is a distortion the so-called smooth efficiency of the market. What is interesting about Australia’s experience with this doctrine, is that despite the doctrine’s acceptance amongst the political and economic class, the welfare state has grown over the last 30 years, and at a faster rate than in most of the developed world.
It is clear that neoliberalism has profoundly affected every facet of public institutions, from education, healthcare, transport, so why not the courts? Cost arrangements typify neoliberal reforms in the civil justice system. Contingency fees and litigations funders are further markers of neoliberal funding arrangements, whilst legal aid budgets are continually whittled away, and increased court fees have made costs prohibitive for much of the Australian public.
But how have we not managed to connect all the procedural changes in the courts system over the last thirty years to this very powerful idea that has transformed public and policy landscape? How has the impact of these changes transformed ideas about the role of the courts in judicial decision-making, and changes such as greater judicial management further alienating effects to its users, and observers?
Current debates about ADR and the impacts of the Woolf reforms are flawed in another way - narrowing of the debate between only the two poles of litigation and ADR. These are presented as the two most effective ways to resolve disputes, relegating all others processes as undesirable. Writing on dispute resolution, Christopher Moore outlined how non-conventional actions, such as protest or withdrawal of labour power (strike) from a work place during a dispute, can be a means, and often are a very effective means of resolving dispute. But in many circumstances, these are the best and most effective for “resolving a dispute”, by forcing a change in laws, or winning justice.
When Malcom Fraser attempted to extinguish one of fundamental social protections in this country, through proposing to cut Medibank in Australia in 1976, a general strike involving 1.6 million workers forced the government to back away.
This action—not the courts, and not ADR—defended the right to universal access to the health care system. Escalating a dispute can be the fatal blow to fighting and winning justice. Anyone who knows of ‘Selma’, and Martin Luther King's march to defy court injunctions, will have seen the importance of thinking beyond the binaries and limitations of the court system. Bad laws are made to be broken.
More recently, the Dean of the Law School at the University of the District of Columbia urged students to take part in community protests in Baltimore. The protests erupted in the wake of recent death of black man Freddie Gray in custody of Baltimore Police. Citing community and police relations as ‘the civil rights issues of our time’, the Dean stated that law school leaders want to be part of the ‘energy and commitment’ of the protests.
The Dean even offered to defer an exam to those who would help with legal advice on the protests. Making ADR and litigation the benchmarks for dispute resolution stops us from seeing that the law is not a harbinger for justice—quite often it’s contrary. Going beyond Woolf and even Genn allows us to see the limitations of the debate and the courts themselves in their capacity to deliver justice.
Jasmine Ali is a first-year JD student.