Recently in these pages (16 October), I mentioned a talk I’d given to a Worldwide Advocacy Conference in July 1998. Then, I’d identified two related developments with implications for civil courts. One, which I discussed last time, was a trend away from the adversarial culture and the traditional role of judges. The other was the possible use of alternatives to litigation, on which I reflect here.
In that 1998 talk, I wondered if the goals of speed, low cost and an acceptable solution were achievable in the litigation system. Reflecting my theme of there being nothing new under the sun, I mentioned Abraham Lincoln’s familiar words: “Discourage litigation….Point out how the nominal winner is often a real loser…”. I suggested that many parties nowadays wanted to participate actively in finding constructive solutions to their problems and, among other things, wished to preserve important relationships. They might feel that a win/lose model was out of place in modern society and ill-suited to modern business approaches.
Readers might ponder the veracity of Jerold Auerbach’s words in ‘Justice Without Law’: “Litigation expresses a chilling, Hobbesian version of human nature. It accentuates hostility, not trust. Selfishness supplants generosity. Truth is shaded by dissembling. [The] adversarial framework …supports competitive aggression to the exclusion of reciprocity and empathy. Litigation can be as bizarre as Alice’s Wonderland. …Autonomy vanishes as mysteriously as the smile of the Cheshire Cat.”
Strong stuff, even today. In 1998, this led me to ask whether we should look at other options, at least for some cases. Most civil cases settle, so should we not look to find ways to achieve that settlement without using the court process at all, I wondered, not least to reduce the cost to the taxpayer and clients. I suggested that this raised “fundamental questions…about the role of the state in providing the means for resolving disputes.” I reflected on access to justice, and whether it was acceptable that so many of us could not afford legal services. I asked if this represented a “failure of the present structure and economics of the provision of legal services”.
A one-time Chief Justice of Tanzania, at a meeting of Commonwealth law ministers in 1990, said: “The state is incapable of resolving the bulk of disputes between its people…The state… has tended to take more than its necessary burden of the function of settling disputes and remedying wrongs. There is now a need to remove a significant part of the disputes from the courts and to return them where they properly belong.”
How pertinent is all of this in 2023? Should we be seeking to remove a significant number of disputes from the courts altogether? There have been some positive developments in Scotland recently in low value cases, with Scottish Government recognition that: “Civil disputes, especially when they end up in court, can be costly and time-consuming for those involved and can affect individuals, communities and organisations.” In England and Wales there is now a clear trend, supported in an important recent court decision, towards a dispute resolution culture which has the purpose of achieving “the important objective of bringing about a fair, speedy and cost-effective solution to the dispute”. These are encouraging events.
Some may be moved to reject all of this. As the writer Tim Hicks puts it: “We have a default scepticism about the new or different…and a default preference for the familiar.” However, as I noted last time, denial, resistance or simple inertia can be a real handicap. There are times to be courageous and decisive and to embrace change.
John Sturrock, The Scotsman, Monday 11 December 2023