Zariski, Archie --- "The Justice Industry in the 21st Century: Review of Educating Lawyers for a Less Adversarial System (Federation Press 1999)" [2000] MurdochUeJlLaw 4; (2000) 7(1) Murdoch University Electronic Journal of Law

The Justice Industry in the 21st Century: Review of Educating Lawyers for a Less Adversarial System (Federation Press 1999)

Author:	Archie Zariski BA, LLB, LLM, Grad Dip Higher Ed Senior Lecturer in Law, School of Law, Murdoch University
Issue:	Volume 7, Number 1 (March 2000)

1. This volume[1] is a valuable, if flawed, contribution to current debates on the future of legal systems in Western countries following the common law tradition. The value flows from a varied collection of essays that consider many of the key issues facing legal communities in England, North America, Australia and New Zealand: the problems of cost and delay in civil litigation. The flaw lies in its fuzzy treatment of the concept of "adversarialness".

2. The contributions to this book are said to be focussed on the theme of educating lawyers and other legal actors for their roles in future less "adversarial" systems. The term "adversarial" is used by the editors with reference to recent studies by the Australian Law Reform Commission[2] that offered a definition drawn from comparative law:

   In broad terms, an adversarial system refers to the common law system of conducting proceedings in which the parties, and not the judge, have the primary responsibility for defining the issues in dispute and for investigating and advancing the dispute.

3. However the ALRC recognised that "adversarialness" was also popularly associated with competitiveness and hostility in disputing:

   The term `adversarial' connotes a competitive battle between foes or contestants and is popularly associated with partisan and unfair litigation tactics. Battle and sporting imagery are commonly used in reference to our legal system. These different meanings associated with an adversarial system have confused the debate concerning legal system reform.

   It is that confusion of meaning this volume falls prey to.

4. As one of the contributors to Educating Lawyers points out, in civil proceedings there are few striking differences between civil code ("inquisitorial") and common law ("adversarial") systems. It is only in the field of criminal law that significant procedural differences are seen. Nevertheless, in both civil and criminal proceedings there may be contrasts in the level of competitiveness, civility and hostility amongst lawyers and their clients in different legal systems. This aspect is not explored directly in Educating Lawyers but is touched on indirectly through discussion of "alternative dispute resolution" processes.

5. The "ADR" movement has advanced an approach to conflict in society oriented towards cooperative problem solving rather than competitive point scoring.[3] ADR often forsakes the procedural niceties of civil litigation in a quest to come to grips with what are called peoples' needs or interests rather than their narrowly defined legal rights. Many ADR advocates believe the needs or interests of all parties to a conflict can be acceptably satisfied through such processes as mediation and conciliation, often with a reduction in hostility or incivility between the disputing parties. But ADR proponents also recognise the parties must reach a solution largely for themselves and in this sense ADR processes shift control of a dispute to the parties even more than the "adversarial" common law system. It is just that lawyers and judges may have a reduced role in bringing the dispute to an end.

6. In my view the increasing importance of ADR reflects a fundamental reconsideration in Western societies of the role of law and the legal system. The elaboration of a complex legal procedure and the expansion of the "justice industry" (courts and lawyers) has gone hand in hand in the twentieth century. It may be that this industry has finally become "over-capitalised", too costly and inefficient in the minds of the majority of the populace. Perhaps it is time to refocus legal systems more on the merits of disputes rather than the labyrinthine procedures we have adopted to pursue them through the courts. One commentator for instance calls for a renewed emphasis on "equity" in dispute resolution.[4]

7. The ADR movement is the vanguard as I see it of a "conflict management" approach to resolving disputes generally in society. Traditional civil litigation procedure may have been needed when facts and situations could not be dealt with more immediately. Today information flows more freely and little can be hidden. It is time for lawyers to stop playing hide and seek with their clients' needs and interests and get into the business of expeditious problem-solving. This volume then on the whole[5] misses a major shift in the legal climate that will affect lawyers and courts increasingly in the new century. People in conflict are being encouraged to assume more control over their disputes and to resolve them in a conciliatory, cooperative spirit. This can be seen both as a triumph of "adversarialness" viewed as party autonomy and as a defeat of "adversarialness" viewed as hostile competitiveness. Clearly the roles of lawyers and judges will be different within this new disputing paradigm. Educating Lawyers provides few clues to what those roles may be or how to train legal professionals to assume them.

8. Perhaps we will look back and say the last century belonged to the lawyers. Don't count on it in the twenty first.

[1] Charles Sampford, Sophie Blencowe and Suzanne Condlin, eds, Educating Lawyers for a Less Adversarial System, Leichhardt, NSW: Federation Press, 1999.

[2] See Australian Law Reform Commission, Discussion Paper 62: Review of the Federal Civil Justice System.

[3] Carrie Menkel-Meadow is one of the leading proponents of this view of disputing.

[4] See John C Anderson, Why Lawyers Derail Justice: Probing The Roots Of Legal Injustices, University Park: The Pennsylvania State University Press, 1999.

[5] One contributor makes the point that in Germany lawyers are financially rewarded specifically for bringing about settlements. Such a policy is relevant to both the meanings of adversarialness.