The recent ADR reforms introduced in Victoria and New South Wales place more emphasis on early ADR and require the parties and their lawyers to confirm certain things have happened using ADR before they will be allowed by the Courts to progress further down the litigation track using the court justice system to resolve the dispute.
Just recently, the Chief Justice of the Canadian Supreme Court, Beverley McLachlin, stated at an Access to Justice symposium stated that “Access to Justice is a fundamental right, not an accessory.” She also said, “Access to Justice implies a responsive decision by the judiciary within a reasonable time and cost”, and “People expect they can turn to the legal system for a resolution. They are ‘hard-wired for justice’. Access to Justice affirms the rule of law, and promotes social stability.”
She then went on to point out that in the Canadian Legal System a 2-3 day civil trial cost around $60,000 to each party to the action. That is on par with Australia.
Most people cannot afford, or easily afford, that sort of money to get the justice they are seeking.
The key point I want to make in Part 2 is that in the current debate about access to justice and the cost of getting justice from the legal system, Alternative Dispute Resolution (ADR) is mostly confined to be discussed and considered as a mere adjunct or component in the “legal system” that exists to dispense “justice” in civil/commercial disputes.
This produces an adverse outcome – it confines ADR, and its role and potential benefits, to being considered with the legal paradigm of access to justice. If you care to review many of my earlier posts on this blog you will quickly discern that I am forcefully and consistently putting forward the view that the best and highest potential for the use of ADR in civil disputes lies in making use of its tools and resources OUTSIDE of the legal system and the legal paradigm for access to justice and dispute resolution.
In the model I am advocating “ADR” is only able to fulfill its highest potential, as an integral part of the “justice system”, if the parties and their representatives approach it and make use of it through the portal of its own paradigm and set of principles to resolve disputes, and not as a step along the way to pursuing justice by seeking a ‘responsive decision by the judiciary within a reasonable time and cost.’
The ADR paradigm for achieving a just outcome of a dispute is very different to the Legal or Litigation paradigm for resolving disputes. I canvass these differences in many of my earlier blog posts.
The “Access to Justice” debate should, in my view, be considering how to fully harness the power and potential of ADR BEFORE any access to justice via the judiciary or tribunals. I am talking about pre-litigation use of ADR. If they did this, then, in my view, many of the vexed problems for access to justice would disappear or be substantially minimized.
In my submission, the current focus on ADR is heavily slanted towards the use of ADR post commencement of litigation rather than on its use before litigation is commenced. It should be the other way around.
I will delve more into this in my next post – “ADR and Access to Justice Part 3″.
Christopher Whitelaw
Commercial Disputes Resolver
Lane Cove Dispute Resolution Centre
02 -94208213
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