Neo, Cathryn --- "The Future of Dispute Resolution" [2013] UTasLawRw 9; (2013) 32(1) University of Tasmania Law Review 142

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The Future of Dispute Resolution

Michael Legg (ed)

Australia: Lexis Nexis Butterworths 2012, pp 297, ISBN 9780409332766, $115.00

So, Leolin went; and toil’d

Mastering the lawless science of our law,

That codeless myriad of precedent,

That wilderness of single instances,

thro' which a few by wit or fortune-led,

May beat a pathway out to wealth and fame.

This excerpt from Tennyson's poem, Aylmer’s Field (1793) illustrates the tension between the ordered system of principles and rules in the court room and the resolution of disputes by judges in examining merits of individual cases in the decision making process. Michael Legg’s The Future of Dispute Resolution highlights the challenge of balancing the complex history of precedents and individual merits in the litigation world, as well as questioning the validity of the courtroom in the future of Australian dispute resolution. The text critically analyses the strengths and weaknesses of Australia's dispute resolution system, compiling the perspectives of authors from varied professional and academic backgrounds on practical issues underlying the current mechanics of the dispute resolution system. Finally, it attempts to provide a comprehensive view on the contentious aspects of Alternative Dispute Resolution (‘ADR’) including discovery, class actions and litigation funding. It concludes by looking at the long-term sustenance of ADR through examining pedagogical methods in law faculties around the world.

The text is based on the University of New South Wales Law School's 40th anniversary conference entitled ‘Dispute Resolution in the Next 40 Years: Repertoire or Revolution.’ The text is divided into eight parts, beginning with a general view of the dispute resolution landscape and an examination of the evolving role and profile of judges. This review will only highlight selected portions of the book which are more comprehensively covered.

After providing a macro overview of the dispute resolution landscape, the text proceeds to emphasise the increasing involvement of technology in litigation, commenting on its positive attributes, such as the increase in efficiency of case management and costs. It also critiques the downfall of the pervasiveness of the electronic media, one of which is the exponential growth in electronic data. While the growing importance of electronic data has allowed for informal ‘off-the-cuff’ remarks to be recorded in the litigation process, it has brought along other collateral problems such as processing, management and storage of data. Further implications arising from the ubiquitous presence of technology are discussed, including the involvement of third party providers such as cloud computing vendors as well as the use of social media by lawyers.

The text proceeds to examine recent law reform attempts to provide a ‘just, quick and cheap’ resolution system and questions the effectiveness of such reforms. It juxtaposes the objective of achieving efficiency with the concept of ‘access to justice’, correctly noting the tendency to conflate time and resource savings with claims on improvements to the validity of evidence that will aid decision making in litigation. It qualifies that, while efficiency is an important aspect of the justice system, the social legitimacy of legal institutions is ultimately still dependent on the ability of the system to achieve factually correct results.

A key theme in the text is the relationship between courts and ADR, and consequent discussion on whether ADR is in fact competing with, or complementary to the litigation process. The book undertakes an examination of the Civil Dispute Resolution Act 2011 (Cth), giving readers a perspective on the effectiveness of the new reforms that aimed to incorporate ADR into the litigation process. In particular, the article by Jeremy Gormly SC provides an interesting perspective on the compulsory provision to take ‘genuine steps to resolve a dispute’^[1] between parties, critiquing how the provision has been ‘lawyerised’ due to its subjective perspective when it was meant to move parties away from the legal aspect of litigation.

The text includes an international component with an article written by Leon E Trakman who discusses the potential of domestic litigation as a practical alternative to investor-state arbitration. Trakman correctly emphasizes the challenge of handling a myriad of domestic laws and rules and stresses the role of investor-state arbitration in maintaining coherence, consistency and certainty in the governance of foreign investment.

While the text is excellent in informing readers of the steps and processes of other ADR techniques such as mediation and arbitration, this information could be more suitably placed in a guidebook featuring a step-by-step process for litigators and arbitrators. One major drawback is the lack of discussion in practical areas of industrial relations disputes, consumer protection and family conciliation where the use of mediation is most popular. The book also attempts to compare Australia's dispute resolution system with other jurisdictions such as Germany. However, as seen in the article by Annette Marfolding in Chapter 24, it appears to lack rigourous research and academic support in its comparative studies, relying heavily on Australian materials, ultimately neglecting the compared jurisdiction. Nonetheless, readers looking for more practical content could look to other texts such as Handbook of Dispute Resolution^[1] to gain insight into negotiations between management and unions as well as case studies from countries such as China and Canada to gain a cultural and historical perspective.

The text attempts to provide a well-rounded perspective of the sphere of litigation by including topics neglected in other dispute resolution books such as the issue of pro bono and pedagogical techniques in ensuring long-term interest in the study of dispute resolution. However, this is also one of its major downfalls as it tries to encompass too many topics, leading to a lack of in-depth discussion of some areas.

Nonetheless, crucial to the text’s success is its ability to provide practical recommendations and guidelines, making it an ideal guidebook for practitioners and new graduates entering the litigation scene. Legg’s ability to pull together the work of highly distinguished practitioners and academics, such as Lord Justice Sir Rupert Jackson and The Hon Chief Justice T F Bathurst, is admirable and the book displays a balanced view on dispute resolution. Despite the text being a series of compiled chapters, Legg has managed to divide and manage the flow of the text effectively such that readers are introduced the basics of dispute resolution before proceeding to the final complexities and technical dilemmas the system faces. Even those without prior knowledge would find The Future of Dispute Resolution a useful read. Overall, the text makes a strong contribution to the debate on whether mediation is a competitor or a complement to litigation. The Future of Dispute Resolution is a useful foundation for developing the Australian academia in this area.

Cathryn Neo^[∗]

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^[1]5 Civil Dispute Resolution Act 2011 (Cth) s 4.

^[1] Karl J Mackie (ed), Handbook of Dispute Resolution (Routledge, 2013).

^[∗] Fourth year LLB student at the University of Tasmania, and Board Member of the University of Tasmania Law Review for 2013.