“… it is the mind-sets of lawyers and judges which are the greatest impediments to change aimed at increasing [the civil justice system’s] fairness …”
“It is especially frustrating to face the protean allegations that an anti-social culture of mindless combativeness pervades practitioners’ approach to litigation, and that this culture is the chief obstacle to the achievement of efficiency. The implication that such instincts (if they exist) can be re-engineered in some unexplained way is equally frustrating.”
and similar findings of others around the world, I believe that there is change in lawyers’ thinking about ADR. However, several questions remain. Numerous studies, including my own, show that most lawyers are favourably disposed towards alternative dispute resolution practices. Yet, other studies indicate that the majority of them do not voluntarily choose these alternatives when they are offered. Similarly, legal education now increasingly incorporates instruction in alternative processes such as mediation. Yet, studies show that such education does little to encourage students to use those processes when they become lawyers.
He drew attention to the special role of law based on elaborate judicial procedures in modern, tightly organised bureaucratic Western states compared with systems of justice in other times and places. Weber recognised the tensions inherent in modern Western procedural legalism and was uncertain what the future might hold for men and women in the “iron cage” of their rational law.
This discourse has largely proceeded on the abstract level of analysis of the conceptual systems adopted by these traditions; however, more recent comparativists have begun to look for significant differences in practices as well. It may be that the comparative approach remains somewhat influenced by the association of culture with nation, whether by accepting or rejecting it. Geertz suggests that we neither dismiss completely nor accept uncritically the role of state institutions in forming law as culture.
For others, recent decades have seen the birth of an “ADR culture” in the United States that has begun to flourish in many jurisdictions within and without that nation. Still others distinguish more specific instances of the turn to alternative dispute resolution processes by postulating the existence of “mediation and arbitration cultures” in distinct localities.
It is a dynamic, relational concept that tries to do justice to the social-psychological nexus in which myriad influences shape how an individual makes sense of herself and her surroundings. Culture is what informs the answer to the question, “What is it to be me, here and now?” Since that “here” and “now” continually changes the answer also changes, reflecting change in personality or social circumstances or both. Thus, the culture an individual identifies in identifying himself is a dynamic selection of signifying elements most salient at the moment. It is also a contextual expression of meaningfulness tuned to the situation in which the individual finds herself.
A majority of both plaintiff and defense attorneys interviewed thought the program would provide a hearing that would be as fair or fairer than a trial, would save their clients time and money, and would produce an outcome favorable to their client.
Parties and lawyers will rely increasingly on alternatives to litigation to resolve their disputes.
Participants in these ADR programs are generally supportive of them. Most of the lawyers felt that the programs are worthwhile in general as well as beneficial for their individual cases.
G L Davies, “Fairness in a Predominantly Adversarial System”, Ch 7 in Helen Stacy and Michael Lavarch, eds, Beyond the Adversarial System, Sydney: Federation Press, 1999, 102.
Bret Walker, “Judicial Time Limits and the Adversarial System”, Ch 6 in Helen Stacy and Michael Lavarch, eds, Beyond the Adversarial System, Sydney: Federation Press, 1999, 88.
For the questionnaire and analysis of responses see Archie Zariski, “Lawyers and Dispute Resolution: What Do They Think And Know (And Think They Know)? – Finding Out Through Survey Research”, available at: http://www.murdoch.edu.au/elaw/issues/v4n2/zaris422.html.
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