Gallavin on Litigation: The system formally known as ADR

By Chris Gallavin

I am not sure if you have all caught up with the fact that it is no longer vogue to refer to Alternative Dispute Resolution as “ADR”.

It is not the acronym that offends, rather the use of the word “Alternative” as a precursor to Dispute Resolution. Simply “Dispute Resolution” is the appropriate nomenclature for the practice of solving disputes by way of an alternative to litigation – damn, I used the “A” word again. I know I sound sarcastic, but in reality I wholeheartedly agree with the sentiment at the heart of the objection.

In fact my categorisation of “alternative to litigation” is also wrong in that Dispute Resolution is likely now so ensconced within the broad notion of “litigation” (litigation with a small “l” if you like) that it is incorrect to regard it as somehow different or separate to the process of litigation.

But perhaps I am wrong – or at least not entirely correct? My hesitation is that I suspect that for some litigation practitioners their practice still revolves around litigation with a capital “L”. I suspect that many of you at the independent bar are likely in that camp. Whereas those working within firms for example may, perhaps, find that their litigation practice is more about Dispute Resolution than appearing in court. I suspect that both propositions are true to greater or lesser degrees and that it is impossible to generalise as to what litigation does or does not mean these days.

The fact is that Dispute Resolution will, for many of you, be an everyday reality regardless of the fact that you may categorise yourself as a “Litigator”.

Many in the Dispute Resolution field, I am sure, would go so far as to say that those who define themselves as Litigators are preverbal luddites and I definitely know of a few Litigators who class Dispute Resolution as both “Alternative” and inferior or “... not real law”.

Again, I think the truth of the matter is somewhere in the middle. Proselytes of Dispute Resolution annoy the hell out of all of us, and the purebred litigator to whom every issue is legal and warrants an adversarial resolution is, I hope, similarly marginal.

Where am I going with all this? I suspect that many litigators are now proponents and practitioners of Dispute Resolution just as much, if not more, than they are advocates for the cut and thrust of cross-examination.

As for you criminal practitioners, sorry, but you cannot avoid this world either. With the Solicitor-General’s Prosecution Guidelines positively jumping at the opportunity to have criminal cases resolved through – let’s call it as it is – plea bargains, and with the development of community justice panels, restorative justice initiatives, and family group conferences, your ability to remain suitably detached in the world of precedents and the rules of evidence are also numbered. But I am not telling you anything new I am sure.

What does keep me up at night is the thought of whether you have the resources needed to be effective in this area of your practice.

In the law schools of this country we do not place sufficient weight upon the virtue of or the skills necessary for effective dispute resolution. I am therefore not confident that you hit the ground running out of university with any particular, orchestrated clue of what to do to actually fix real world problems involving real world people.

It is most certainly not the case that Dispute Resolution lacks any theoretical base that would allow people to say, “it’s more of a polytechnic focus and not for universities”. But this is perhaps the most pressing challenge for law schools.

Save for a small group of outstanding scholars in New Zealand, those who understand the theory behind Dispute Resolution – negotiation, mediation, arbitration, facilitated resolution etc and the practice of it – are few and far between. It is not enough, I believe, for people to be merely trained in the practical skill – an understanding of the theory and psychology underpinning the need for humans to create and also resolve conflict is vital.

Further, while I certainly do not want to give the impression that such skills cannot be learned on the job I doubt that the astoundingly robust requirement of 10 hours of professional development per year will provide an opportunity for effective up-skilling in this area (yes, my sarcasm was intentional).

You, as a litigator, need to make an increasing commitment in the area of Dispute Resolution – I am convinced of that. Not only is it important for your clients but if the reports of law firm fees steadily decreasing over the past five years in Australasia and an impending financial crisis in the legal fraternity are to be believed then contracting or referring such services out will no longer be a smart move for even for the most ardent Litigator.

So humour me and let me finish on just one piece of sanctimonious advice. Those Dispute Resolution practitioners among you – please be gentle. No one likes a know-all, and those of you who believe everything revolves around Dispute Resolution and that litigation is dead or is bad for all clients all of the time (you know who you are), stop yourself from falling into the same trap as that of those you criticise. And for those Litigators among you (note the capital “L”) your embracing of Dispute Resolution may not only be good for your clients it may also make good financial sense for your practice.

Dr Chris Gallavin is an Associate Professor and Dean of Law at Canterbury University. He has published extensively on criminal justice and on evidence and procedure in particular. He is the author of the appellant handbook, Evidence (LexisNexis, Wellington, 2008), and regularly undertakes consultant work in the area of the law of evidence. 

This was first published in LawTalk 847, 1 August 2014.