Big And Small Players – The ADR Justice Issue

In various sessions of the GPC, members of the Australian Dispute Resolution Advisory Council (ADRAC) Tom Howe QC of AGS, Debbie Hastings (Deputy Commissioner of Taxation) and Margaret Halsmith (Chair of Resolution Institute) noted that, whilst commercial disputes may sometimes involve very large disputes between very large disputants, they more often involve smaller disputes.

They pointed out that frequently at least one of the disputants is someone of modest means who may not be in a position to take or defend legal action – people who can be affected by, lost in or excluded from a litigated dispute, too small to assert themselves let alone protect their interests.

A broader view of dispute resolution

Access to justice in some form where a dispute is expressed, managed and resolved, is a critical issue for everyone but it can become an economic and policy issue as well. While it is always important for the legal system to have the capacity to receive and manage smaller claims it is neither feasible nor appropriate to regard the legal system as the place to which all must disputants must go to achieve a suitable and just outcome of a dispute

Courts have limited capacity and always will. Justice must always move at its pace rather than at an economically convenient transactional pace. Even if there was capacity to manage all disputes in courts, it not sound policy to treat courts as sole dispute resolvers. Court determine disputes that cannot be resolved by the parties or in some other reasonable way. Disputants can and mostly do resolve their own disputes, either themselves or with some help, short of litigation.

ADRAC has actively supported the view that while justice is a prime concern of the legal system, the courts are not the only source of justice. Systems of ‘alternative dispute resolution’ involving a third party to aid resolution are a very important means, and may be the only means, for large numbers of people to access justice.

Beyond the courts

ADRAC adopts and promotes the view expressed in the Attorney-General’s Department publication A Strategic Framework for Access to Justice in the Federal Civil Justice System (September 2009) which pointed out that:

“Courts are not the primary means by which people resolve their disputes. They never have been. Very few civil disputes reach formal justice mechanisms such as courts, and fewer reach final determination.”

To adopt that view is a simple recognition that justice is a goal throughout the community whether in trade, in schools, among nations, between neighbours or anywhere that fair dealing is recognised as having value. Justice could never be the sole concern of courts.

ADRAC considers that any analysis of mechanisms for, or access to, justice should include methods of dispute resolution other than court determination.

ADRAC proposes to put a submission, along these lines, to the Law Council of Australia in the context of its current review of access to justice. ADRAC’s ADR Mapping project contains a number of articles concerning access to justice and ADR.

Written by Jeremy Gormly.

Jeremy Gormly SC practices at the Sydney Bar, and has a long history of involvement as counsel assisting in numerous inquests and inquiries. Jeremy has also practiced as a mediator for over 20 years across a large number of dispute types, and is keenly involved in the advance of ADR. He is the current chair of ADRAC and the former chair of the National Alternative Dispute Resolution Advisory Council (NADRAC).

ADRAC introduced itself at the Australian National Mediation Conference in September 2016 and is currently engaged in mapping ADR in Australia on a forum-like basis to which there can be public input via its website, and has recently embarked on a study of conciliation.

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