Alternative dispute resolution and non-adversarial regulation: why are they still not mainstream and can they ever become mainstream? Rick Sarre Asia-Pacific Mediation Forum Conference, Adelaide, 29 November – 1 December 2001 Introduction Law is a discipline that is highly resistant to change. While modern practitioners of medicine, physics, sociology and philosophy hold understandings vastly different from those held by their ancient counterparts, it is not difficult to imagine that jurists from ancient Rome, for example, would probably be able to function quite efficiently in a modern legal chambers, provided, merely, that they were able to bring themselves up to date on current legislation, cases and procedure (Cohn 1967:64). While this is not necessarily remarkable in itself - the functions of family life, for example, would have few dissimilarities either - nevertheless what can be seen as the common link is the tenacity with which both the ancient and modern legal systems hold on to certain tenets, practices and procedures. One such tenet in the common law system is that justice is more likely to be done (indeed, to be seen to be done) when one is able to have one’s day in court. Increasingly, this view has been questioned and challenged. Alternatives to adversarial formality have emerged, for example, systems and practices pursuing, amongst other things, alternative dispute resolution or ‘ADR’, family group conferencing, interest-based mediation, court-ordered conciliation conferences, industrial arbitration, transformative justice, restorative justice, diversionary courts and therapeutic jurisprudence. Each of these alternatives came about as more and more people began to recognise the limitations of any approach that brought parties into a highly formalised legal battle, one against the other, where there could be but one winner (eg. French 1991, Ingleby 1991). Legal and non-legal observers alike have been enormously productive in seeking out and spelling out ways and means to address and manage legal conflicts and to solve legal problems in ways that are enduring and acceptable to the parties concerned. The reasons for this search for alternatives are easy to glean. In adversarial systems, criminal and civil alike, an adjudicator (a judge or jury) considers the arguments from both sides, following examination and cross-examination and re-examination (and legal argument on the admissibility of evidence) and imposes a judgment. The dispute is thereby declared ‘resolved’. This resolution, however, comes at great cost, not only in terms of the legal expenses imposed upon the litigants (and the community, too, as measured in court time, judicial costs etc), but in the harm done to the combatants as well, financially and psychologically. The conflict never really goes away. In many ways, commentators allege, it is merely exacerbated (e.g. McDonald and Moore 2001). In contrast, non-adversarial procedures and informal practices are said to be more easily accessible and less daunting to those who wish to participate in the legal process but whose skills, confidence or resources are lacking. Yet despite all of the evidence of the spiralling costs and enduring bitterness launched and fomented by the litigious process, there is little evidence that its appeal, generally, is shrinking. That is not to say that alternatives are being frustrated by this resilience. Certainly there are officially mandated (‘court-annexed’) conciliation conferences readily ordered in commercial cases, family law disputes and in the industrial and employment law realms. It is also the fact, of course, that most legal matters, certainly commercial cases, are settled ‘out of court’. Yet there is an unyielding view that alternatives to litigation are still very much the ‘alternative’. The instituting of legal proceedings, and, indeed, the making of threats of litigation, are fundamental to the processes associated with civil justice. The resilience of adversarial approaches There are a number of possible reasons why litigation endures as the cornerstone of the civil legal