ADR the "Achillies Heel" of Democracy

We have all heard the terms "separation of the powers" and "Justice must be done and seen to be done". But do we really know why these axioms exist in civilised society?

Well the separation of powers is between law and politics. That is to say "natural law v posited law". Natural law is the little bit of reasoning (ratio decidendi) of a case precedent. Posited law is the rule of law contained in a Statute as made by the legislature on the back of the people (citizens/subjects of a country). Natural law is what the law "ought" to be and posited law "is" the law. Simple you might think from time immemorial.

Unfortunately, if the balance between judicial reasoning and legislature does not happen, then I argue, neither does democracy. Why, if no cases challenge or reiterate the rule of law at common law (case precedent) or as contained in a statute, then law stagnates and becomes political "is" law. Assuming the will of the people is always adhered to then law "should" be "good" law to regulate all citizens. However, not all politicians are ultimately good and not all societies are ultimately good either.

Therefore, to unbalance democracy all you need to do is to prevent either Justice not occurring or the legislature to not occur. But it is not as simple as that. Justice is fundamental to democracy. Why, because "Justice" sets the standard of reasonableness to what the rule of law "ought" to be and this can occur objectively or subjectively via the equitable discretion of the judge. In a democracy, the standard of reasonableness is determined to be equality, fairness, impartiality and justice. Therefore Justice is the "ultimate" and is "fundamental" to democracy. Stop "Justice" and you prevent equality, etc.

Currently in England & Wales, and America a Japanese concept called ADR (Alternative Dispute Resolution) is being contained "within" the judiciary and legal profession. It is being premised as "access to justice" and is contained in a Directive on Mediation which is going to impact on the Scottish and European legal systems, except Denmark who have abstained. The problem with ADR is that it does the "opposite" and removes the case from the path of access to justice, where the parties may not experience equality, fairness, impartiality or justice. The difference is that the judge is never a mediator and the mediator is never a judge. As such, something is occurring to democracy that is being falsely premised, the issue remains – why?

We have had "regimes", "regime change" and "change management" in the last decade within UK politics – from what to what? (Liberalisation!). Now ADR is a Japanese concept and as such it is used culturally to "save loss of face". In Japan litigation is a "last resort" concept. Japanese culture is based on confidentiality agreements and gagging clauses covering up who knows what. Japanese society is therefore largely "hidden". This by contrast is not how Western society is, our courts are "public" and the light of day shines into its darkest reaches most of the time.

Anyway, I recently spoke to a Scottish mediator and he informed me "but 97% of cases settle without trial": therefore 3% make it to Justice and impact uniformly on society. Just 3% is necessary in order to ensure that British society exists as a democratic society where society is deemed to be civilised, safe and just. (I am surprised, maybe closer inspection needs to occur concerning this statistic!) Therefore why do ADR’sts want to have ADR "within" the judiciary and legal profession and potentially impact on 3% of cases that fundamentally must go the distance when ADR "outwith" the judiciary and legal profession and with freedom of choice and the equilibrium of the dispute market they have potential to access 97% of cases: that should be sufficient.

If, 97% of disputes "settle" before trial, this presumably is why Woolf claims (1) equality and (2) access to justice. Settlement is potentially divided into judiciary ("traditional equality") and mediators ("contemporary equality"). Either the judge decides or the parties decide the outcome of the dispute. Therefore contemporary equality is 99:1; 60:40; [50:50]; 30:70; 1:99. The fact that it is possible for traditional equality and contemporary equality to be 50:50 presupposes that mediation does have some "good" quality, howsoever, unlikely the parties will settle on this outcome may be in reality. With mediation there is disempowerment especially where psychological techniques are used: "gold will be left on the table" – there must fundamentally be a benefit to all parties – win/win rather than win/lose via the judiciary. The difference is that judicial equality provides compensation (monetary value), mediation may provide redress, ie the remedy may have a different weight.

As such, I advocate the "Competition model" for Scotland and Europe:

Judges, lawyers and barristers NOT permitted to practice ADR – because their sole role in society is to uphold the rule of law!

A professional body of mediators akin to the Law Society/Bar Council

A mediation centre in every town/city where there currently exists a court

That is to say, that the competition model would separate litigators from mediators. The market would determine who got the disputes and in what percentage on the basis of freedom of choice. ADR would exist in a democracy and so would the rule of law.

However, of concern to me is how ADR is being processed in society. The English & Welsh model was processed by the Woolf Report which became the Access to Justice Act 1999 and CPR Rule 26 processed ADR "within" the judiciary. The Woolf Report stupidly in my view informed "litigation will be avoided whenever possible" ambiguously in a report entitled "Access to Justice" (Annex 1). Therefore it is clear that something intellectually was deficient concerning the processing of ADR within English/Welsh society – or was it? If we are being "change managed" to some other political state then the judicial and political elite would be acting deliberately rather than inadvertently.

Furthermore, the Scottish Executive have been processing the Directive on Mediation at European level. A consultation paper on the subsidiary principle via Arlene McCarthy MEP saw 2 out of 27 published responses interviewed and as my response proposed the Competition model and was not therefore the proposed model, it was perhaps biased or prejudicial to not also interview me on the premis that you ought democratically to interview for and against your proposal. 5 further "experts"! were also interviewed, effectively rubber stamping an already settled outcome.

Therefore, it would appear to me that I am making the case that "democracy" is being dispensed with politically as well as judicially. – because of ADR - Why?

Surely, there is a need to take a step back and look at the models (do an evaluation) – English & Welsh, American, Japanese and for good measure the Danish before impacting on Scotland and Europe.

So to recap – ADR is the "achillies heel" of democracy because:

It is being processed as something it is not and never can be because it is "opposite" to Access to Justice, ie Access FROM Justice: compromise.

It upsets the finely balanced mechanism between natural law and posited law and if judges do not "reason" then society stagnates in a political quagmire.

Even the political domain cannot process a consultation fairly proving that "standards" in society have subsequently lowered.

ADR "undermines" the rule of law because it gags society at the individual level and prevents law being uniformly applicable.

The Japanese process ADR as a cultural feature to their society, we are processing it because it is cheaper and quicker than litigation (not necessarily true) – so revamp the litigation process to the 21st Century using IT! and "improve" on a 3% statistic.

Do you want to exist in a safe and just society – with ADR contained "within" the judiciary – just what society are you expecting? What should the international symbol of "Compromise" look like?

ANNEX 1 - Access to Justice Table re Woolf (worth downloading)

References:

Woolf Report - Access to Justice

Published responses to the Consultation Paper on the Subsidiary Principle concerning the Directive on Mediation

Com (2004) 718