Alternative Dispute Resolution: A Threat To Democracy?
“To the extent that we are privatising public civil dispute resolution systems, we are essentially privatising a significant part of the way democracy is realized[1]”. The postulated existence and potential consequences of this perceived democratic deficit in Alternative Dispute Resolution (ADR) will be the focus of this article and will be examined in the wider context of civil justice, family law and restorative justice on a comparative basis. This article will begin with a description of Farrow’s specific claims, and then move on to more general evaluation of whether his overall claim that the growth in ADR represents a move away from democratically accountable dispute resolution is valid.
Farrow makes three main criticisms with regard to the growth of ADR as privatised justice: firstly, he claims that it undermines the development of common law; secondly, it denies claimants the procedural protection of the court process; thirdly, and most interestingly, it represents a danger to Western democratic institutions. This latter claim is predicated on the idea that dispute resolution should not be seen simply as a one-off decision regarding the private rights of the present parties; rather, “the basic premise… behind a robust public dispute resolution system… is to create a fair, predictable, accessible, just and relatively common regulatory system for all.[2]” He therefore argues that “civil dispute resolution regimes play a central role in the regulatory processes of modern Western democracies. Given this central role in processes of democratic governance, the move to privatize public civil dispute resolution regimes has profound implications for how we govern ourselves in a free and democratic society.[3]”
Each of these criticisms is related to the overall argument that ADR has a negative impact on democracy and each will be examined in detail below in this context.
Claim 1: ADR as privatised justice represents a threat to Western democratic institutions
The extent to which ADR can be seen as an attack on Western democratic institutions is questionable when one considers the fact that the move towards reliance on ADR has often been spearheaded by these very same institutions. Writing specifically about Canada, Farrow notes that it was the Department of Justice which initiated the Dispute Resolution Service in 1992; that it was the Ministry of Attorney General which created the Dispute Resolution Office of British Colombia in 1996; and that among the most vocal advocates for a move towards ADR were the lawyers and judges who could see that traditional dispute resolution methods before the courts were inefficient and inaccessible to many people[4]. Similarly, in Britain it was the Woolf reforms of 1995 and 1996 which began to advocate for ADR in light of similar worries about efficiency, and pursuant to them it is the courts which have taken on the cause of ADR with enthusiasm: in several cases, judges have criticised litigants for making the dispute “over-judicialised[5]” or spoken of an “unreasonable refusal[6]” to mediate (although continuing to deny that the judiciary has any role in encouraging mediation, leaving that role to the legal profession[7]). In light of these considerations, it seems odd that the very democratic institutions that Farrow worries are threatened by ADR would be so happy to encourage its growth.
Yet certain examples of ADR may provide evidence for Farrow’s point: specifically, the growth of family mediation in the Shariah councils of Britain, and the historical example of restorative justice in the Gullah community of South Carolina. Both of these examples represent explicit challenges to Western ideals of democracy and rule of law; indeed, Hasnas views the rule of law as a “myth” which has survived simply because it is “the most effective means of social control available to the state[8]”, and this opposition to state law characterises the attitudes of many cultural minorities who find themselves within a multicultural society. The Gullah model of restorative justice was based upon afrocentric principles of communitarianism, spirituality and co-operation. Its aim was to restore relationships rather than to dish out guilt and punishment, an idea which is shown dramatically in an example narrated by Jenkins[9] where one man was responsible for the accidental killing of another man, and his only ‘punishment’, if such a eurocentric concept can be used in the Gullah context, was the hostility with which his community treated him in a community coalition meeting. To the Gullah, this system of restorative justice was seen as “just law”, based on the jurisdiction of the Praise House and the authority of the Bible, and the state law imposed from above was seen as “unjust law”. Until the construction of a bridge connecting the Gullah community to the mainland in the 1950s, it was “just law” that governed the resolution of nearly every dispute.
Similarly in the Shariah Councils of Britain, it is Islamic principles which govern family disputes rather than principles of English family law. It is notable at the outset that both the Gullah community in South Carolina and the Islamic community in Britain share a common origin, in that both groups originate from outside their host country (in the Gullah context, it was slavery that brought them to America; in the British context, it was free choice) and have perhaps chosen to cling onto their cultural background once established in their host state in a search for identity. This cultural identity comes to govern not just fashion and customs, but law as well; the Gullah imported legal concepts from their original West Africa and, similarly, some religious scholars in the Shariah Councils try to align their advice with interpretations of Islamic law consistent with those of their colleagues in Pakistan[10]. In this way it can be seen that Farrow may be right that ADR is a challenge to Western democratic institutions where ADR arises informally within minority communities.
The extent to which this can be counteracted by training mainstream mediation services to be culturally sensitive is unclear. Certainly, it is advantageous to do so, and necessary if minorities are to begin engaging with the democratic institutions Farrow is so concerned to protect. In the Australian family mediation context, it has been found that a disproportionately low number of people from Culturally and Linguistically Diverse (CALD) backgrounds are accessing mediation services[11], and this is due to barriers to access within the ADR system, significant gaps in provision of services and a lack of confidence on the part of staff in dealing with people of a CALD background[12]. Several studies have found that some in CALD communities choose not to engage in mainstream ADR out of fear that mediators would not understand their cultural background[13] or would try to impose anglo-centric notions of ‘family’ onto the resolution of their dispute[14]. Of course in this context, it is not the mediation service itself which is a threat to the democratic institutions of Australia, but the fact that CALD communities are choosing to turn to the community rather than the state in times of dispute, and this must at least partly be put down to the oft-collective nature of CALD cultures and the concomitant reliance on family and community hierarchies to solve disputes[15]. Yet clearly, insofar as it is possible, these concerns need to be addressed if Western democratic institutions are to avoid becoming irrelevant to minority communities, resulting in the creation of legal pluralism and “semi-autonomous social fields”, which act like legal systems within legal systems and, although influenced by the overall state system, retain “the means to coerce or induce compliance” in the minority group[16]. Such a result would clearly have the negative impact on democratic institutions that Farrow so fears.
Yet while such a move may harm democratic institutions, it may not be harmful for democracy as an abstract concept. Braithwaite notes that “western democratic institutions were planted in the shallow soil of societies where disputes had been taken over by the king[17]”; just as a move away from autocracy towards institutionalised democracy was a move towards democracy in the abstract sense, so a move away from institutions and towards ADR may also be such a move. ADR might conceptually be seen as an expression of direct democracy, where parties are empowered to represent themselves in mediation and in their choice of applicable rules and norms, rather than being governed by rules created by a parliament which can be said, at best, only to indirectly represent them. Here, then, the ‘profound implications’ of ADR for democracy may actually be a positive move. Whether this abstract point bears out in practice will be examined in the rest of this article.
Claim 2: ADR represents an attack of the procedural protections offered by the court process
Of course, this postulated advancement would require that no party to the mediated dispute is the victim of an abuse of power. Given that democracy requires each person to enjoy equal rights and equal influence on how decisions are made and power is used, a movement towards greater democracy would need to not only increase the power each person holds, but also to ensure that this power is not held in unequal proportions. Indeed, this is the very purpose of having procedural safeguards in the court process.
In theory, methods of ADR avoid the creation of power imbalances and can thus be seen as a positive step towards greater empowerment. The Code of Practice for Family Mediators, for example, which is distributed by the Family Mediation Council and applies to all mediators who are part of Member Organisations, contains many provisions designed to safeguard participants to family mediation in the UK from any abuse of power by one party or another. Paragraph 5.4.2 states in very clear terms: “Mediators must seek to prevent manipulative, threatening or intimidating behaviour by any participant. They must conduct the process in such a way as to redress, as far as possible, any imbalance of power between the participants. If such behaviour or any other imbalance seems likely to render the mediation unfair or ineffective, mediators must take appropriate steps to seek to prevent this including terminating the mediation if necessary”. Similar principles are enunciated elsewhere in the document: mediators may withdraw from the mediation if they suspect participants are acting in a manner seriously detrimental to child welfare[18]; mediators are obliged to report any suspicions of significant harm being suffered by children to the relevant authorities[19]; and as a general principle, “mediators must seek to ensure that participants take part in the mediation willingly and without fear of violence or harm[20]”. These and other safeguards ensure, at least theoretically, that any family mediation occurring in the UK under the auspices of the Family Mediation Council will provide both the empowerment inherent in mediation to the participants, while also ensuring that, should evidence of abuse of this power arise, the abused party continues to enjoy the protection of legal safeguards.
Unfortunately, actual practice often differs from the principles of the Code. While Member Organisations of the Family Mediation Council (FMC) most likely adhere to them, the fact that other ADR services are available outside the FMC system prevent these safeguards from applying to participants there; furthermore, experience from other jurisdictions illustrates the dangers of unregulated ADR. Two specific examples which back up this point are the ‘Dealership Case’ described by Farrow and the experience of women in Shariah Councils in the UK.
Abuse of power is most clearly shown in the latter example. On one hand, the process is quite inclusive for women: the requirement of filling out reasons for divorce on the application form allows women to have a voice in the procedure from the start. Shariah councils also emphasise that seeking an Islamic divorce before them is not forced; rather, women must choose voluntarily to come before them. Yet while these factors seem to indicate that women are well represented within Islamic divorce proceedings, the picture is not quite so simple. The fundamental aim of Islamic divorce proceedings before a Shariah council is reconciliation, which is presented as a religious and moral duty; moreover, one cannot get an Islamic divorce certificate without having first appeared before a Shariah council. Thus many women who appear before the Councils do so reluctantly. This pressure for reconciliation, while noble, can be carried to unpleasant extremes: for example, Bano[21] found that among ten women observed in reconciliation proceedings, four reported that they were party to civil injunctions issued against their husbands on the grounds of violence and threatening behaviour. He concludes his examination of the Shariah councils by stating that “in operation, there are subliminal and covert forms of power and coercion the rendering the parties unequal and the process unfair[22]”. This form of family mediation therefore clearly lacks the safeguards these women would have, and did have, access to the court. Since democracy requires legal safeguards to ensure that weaker members of the population do not have their voices ignored or suppressed, it cannot be said that, in this context, a move towards community decision-making has also been a move towards greater democracy.
If abuse of power towards women is shown in Islamic mediation by their involvement in the process, it is shown in mainstream mediation by their exclusion from it. Armstrong notes that particularly for women from CALD backgrounds in Australia, cultural values that view family unity as more important than prevention of domestic abuse may prevent women from speaking out when they are abused[23]. In community mediation, the abuse is perpetuated by a focus on reconciliation; in mainstream mediation, it is ignored by the failure of the system to engage with victims. While this is also a problem for the court system, it may be less serious given that people from non-English speaking countries are more likely to prefer recourse to legal professionals and the court system than to mediators[24].
Abuse of power may occur even when guidelines are designed to prevent it, as shown by the ‘Dealership case’[25]. Here Farrow was acting for his client, ‘John’, who had refused to make more payments on a contract for the purchase of computer equipment after discovering that the computer representative, whom he had taken to be an employee of a manufacturer with whom ‘John’ regularly dealt, was actually an employee of a corporation newly formed on the back of that manufacturer, despite the fact that the representative’s uniform, letterhead and business card continued to display the insignia of the original manufacturer. ‘John’ claimed that his loyalty to and trust in the original manufacturer has been manipulated so that he purchase an overpriced computer system with an unwanted service package. A clause in the contract stated that any disputes would be heard by a private arbitration association.
In this arbitration the requirement of confidentiality acted as a buttress to the corporation’s power. It meant that Farrow could not raise in evidence the fact that he had discovered other arbitrations where the corporations was taking action against others in John’s position for the same reasons against the corporation’s claim that their representative’s treatment of ‘John’ was a one-off incident. Were these disputes being heard before a public court or tribunal, they would have been admissible in court as evidence in the dispute, and before the arena of public opinion as evidence of corporate corruption. More generally, a decision to arbitrate in such scenarios may not represent both parties’ empowerment to decide the forum and rules for settlement of the dispute, but may rather represent the weakness of one party (here, John) in relation to the other (here, the corporation). This example provides strong evidence for Farrow’s claim that a public dispute resolution system is necessary and counters Hadfield’s claim that as “[t]he economic sphere of law regularly deals with relationships that involve only corporate entities, private legal regimes could provide this law without raising legitimacy concerns”[26].
If confidentiality can be harmful to the protection of democratic interests, the fact that confidentiality is a core part of many ADR regimes, such as family mediation in the UK[27] and civil mediation in the EU[28], may give weight to Farrow’s argument. Yet here again, theoretical safeguards exist to protect confidentiality from being abused: the Code of Practice for Family Mediators allows breaches of confidentiality where there is evidence of harm to children such that social services may be contacted[29] or the information may be revealed in court[30], and where there are “other public policy considerations… such as an adult suffering or likely to suffer significant harm[31]”. The EU Directive also allows breaches of confidentiality when “this is necessary for overriding considerations of public policy… in particular… to ensure the protection of the best interests of children or to prevent harm to the physical or psychological integrity of a person[32]”. Furthermore, on a theoretical level, confidentiality may be justified as empowering individuals involved in ADR who would otherwise fear to speak out in court.
Of course, the arbitration described in the ‘Dealership Case’ is different from cases of mediation, most notably because mediation is based on a search for common ground facilitated by a neutral mediator. This is emphasised by the definition of mediation given by paragraph 2.1 of the Code of Conduct for Family Mediators, which states that “mediation aims to assist participants to reach the decisions they consider appropriate to their own particular circumstances”. Theoretically, this seems quite democratic and empowering; yet in practice, mediator bias and cultural norms may predicate a particular result.
Claim 3: ADR represents an attack on the evolution of common law
It stands to reason that when disputes are resolved outside of court, the common law, as developed normally by judicial precedent and court judgements, will not develop. However, it is necessary to ask whether this stunted development of common law is necessarily harmful to democracy. On the one hand, the growth of ADR can be twinned with the growth of legal uncertainty, in that participants in mediation and arbitration may not be able to rely upon previous judgements of the non-existent judge, and in that non-participants may not be able to rely upon the result of the mediation or arbitration as a precedent that could have enunciated a contested area of law. Here we return to Farrow’s main argument that dispute resolution is not just about a one-off decision of the balance of rights between two parties, but also about the public good.
Nonetheless, democracy can happily exist without common law at its side. In Britain, restorative justice programmes have proven themselves to be both democratic, in that the agreement signed by the offender is one to which all parties have consented voluntarily, and effective, in that offenders are more likely to obey an agreement to which they have voluntarily agreed than one which is imposed on them: rates of adherence to these agreements range from between 64% and 100%[33], 80%[34] and 91%[35]. Thus democracy in criminal justice can exist without common law.
Yet something must be done with those offenders who do not adhere to their agreements. Braithwaite[36] advocates a pyramid approach, whereby the first stage involves restorative justice; the second, a coercive measure designed as deterrent; the third, a coercive measure designed to disable the offender from offending again. Within this system, it is acknowledged in stage one that most people react to threats with defiance rather than compliance[37] and that voluntarily agreed deals are more likely to be followed, but stage two exists for exceptions to this rule. Common law would have its place in stages two or three, while stage one would focus on the particular relationship between victim and offender. If ADR were designed like this, the integrity of the common law would remain intact, while the ability of people to make voluntary agreements which reflect them more accurately than indirectly voted laws would be included.
Thus it seems that ADR does not necessarily constitute a danger to democracy, provided it is used correctly: while it may reduce the relevance of traditional state structures such as the court system, this is often done at the behest of these very structures and, even if ADR does damage the present democratic institutions of the West, it could potentially represent a move towards a more non-institutionalised democratic method of dispute resolution; however, in practice, this seems not to be the case, as power imbalances are often exaggerated in ADR where court procedures would otherwise have provided protection; and while the development of the common law is inevitably affected, this need not threaten democratic principles if ADR and traditional court structures can be successfully married.
BIBLIOGRAPHY
Books
Fisher, T (ed) 1998, Fourth national mediation conference proceedings, Melbourne: School of Law and Legal Studies, La Trobe University
Otto, H U and Messmer, H 1992, Restorative Justice on Trial: Pitfalls and Potentials of Victim-Offender Mediation- International Research Perspectives, Dordrecht and Boston: Kluwer
Journal Articles
Armstrong, S 2010, ‘Enhancing access to family dispute resolution for families from culturally and linguistically diverse backgrounds’, Australian Family Relationships Clearinghouse
Bano, S 2007, ‘Islamic Family Arbitration, Justice and Human Rights in Britain’, Law, Social Justice and Global Development, 2007(1)
Braithwaite, J 2004, ‘Restorative Justice and De-Professionalization’, The Good Society, 13(1), pp. 28-31
Dignan, J 1992, ‘Repairing the Bridge: Can Reparation work in the Service of Diversion?’, British Journal of Criminology, 32, pp. 453 – 472
Hadfield, G. H., 2001, ‘Privatizing Commercial Law’, Cato Institute, [online] available at <http://www.cato.org/pubs/regulation/regv24n1/hadfield.pdf>
Hasnas, J 1995, ‘The myth of the rule of law’, Wisconsin Law Review, 1995
Jenkins, M 2006, ‘Gullah Island Dispute Resolution: an example of Afrocentric restorative justice’, Journal of Black Studies, 37(2), pp. 299 – 319
Moore, F S 1973, ‘Law and Social Change: The Semi-Autonomous Social Field as an Appropriate Subject of Study’, Law and Society Review, 7, pp. 719 – 746
Sherman, W L 1993, ‘Defiance, Deterrence and Irrelevance: A Theory of the Criminal Sanction’, Journal of Research in Crime and Delinquency, 30, pp. 445 – 473
Research Papers
ACNielsen, 1998, ‘Family and Child Mediation Survey: Final report’, Canberra: Attorney General’s-Department
Colmar Brunton Social Research, 2004, ‘Family Relationships Services Program: Client input consultancy’, Canberra: Department of Family and Community Services and the Attorney-General’s Department
Farrow, T 2008, ‘Public Justice, Private Dispute Resolution and Democracy’, CLPE
Research Paper 18/2008, 4(4)
Hughson, S 2002, ‘Primary dispute resolution: Embracing diversity’, Canberra: Department of Prime Minister and Cabinet
Kaspiew, R., Gray, M., Weston, R., Moloney, L., Hand, K., Qu, L., & the Family Law Evaluation Team, 2009, ‘Evaluation of the 2006 family law reforms’, Melbourne: Australian Institute of Family Studies
Legal Services Commission of South Australia, 2004a, ‘Report on the African communities consultation for the Family Law And Culturally And Linguistically Diverse (CALD) Communities Project’, Adelaide: Legal Services Commission of South Australia
Legal Services Commission of South Australia, 2004b, ‘Report on the Asian community consultation for the Family Law and Culturally and Linguistically Diverse
(CALD) Communities Project’, Adelaide: Legal Services Commission of South Australia
Pankaj, V 2000, ‘Family mediation services for minority ethnic families in Scotland’, Glasgow: The Scottish Executive Central Research
Urbis Keys Young, 2004, ‘Review of the Family Relationships Services Program’, Canberra: Department of Family and Community Services and Attorney-General’s Department
Cases
Cowl and others v Plymouth City Council [2001] All ER (D) 206 (Dec)
Dunnett v Railtrack plc (in railway administration) [2002] 2 All ER 850
Halsey v Milton Keynes General NHS Trust [2004] 4 All ER 920
Legislation and Guidance
EU Directive 2008/52/EC
Code of Practice for Family Mediators
[1] Farrow, T 2008, ‘Public Justice, Private Dispute Resolution and Democracy’, CLPE Research Paper 18/2008, Vol. 4, No. 4, p. 59
[2] Ibid, p. 57
[3] Ibid, p. 59
[4] Ibid, pp. 13 – 29
[5] Cowl and others v Plymouth City Council [2001] All ER (D) 206 (Dec)
[6] Dunnett v Railtrack plc (in railway administration) [2002] 2 All ER 850
[7] Halsey v Milton Keynes General NHS Trust [2004] 4 All ER 920
[8] Hasnas, J 1995, ‘The myth of the rule of law’, Wisconsin Law Review, Vol. 1995
[9] Jenkins, M 2006, ‘Gullah Island Dispute Resolution: an example of Afrocentric restorative justice’, Journal of Black Studies, 37(2), pp. 299 – 319
[10] Bano, S 2007, ‘Islamic Family Arbitration, Justice and Human Rights in Britain’, Law, Social Justice and Global Development, 2007(1)
[11] Armstrong, S 2010, ‘Enhancing access to family dispute resolution for families from culturally and linguistically diverse backgrounds’, Australian Family Relationships Clearinghouse
[12] Colmar Brunton Social Research, 2004, ‘Family Relationships Services Program: Client input consultancy’ Canberra: Department of Family and Community Services and the Attorney-General’s Department; Kaspiew, R., Gray, M., Weston, R., Moloney, L., Hand, K., Qu, L., & the Family Law Evaluation Team, 2009, ‘Evaluation of the 2006 family law reforms’, Melbourne: Australian Institute of Family Studies; Urbis Keys Young, 2004, ‘Review of the Family Relationships Services Program’, Canberra: Department of Family and Community Services and Attorney-General’s Department
[13] Supra note 11; Hughson, S 2002, ‘Primary dispute resolution: Embracing diversity’, Canberra: Department of Prime Minister and Cabinet; Legal Services Commission of South Australia, 2004a, ‘Report on the African communities consultation for the Family Law And Culturally And Linguistically Diverse (CALD) Communities Project’, Adelaide: Legal Services Commission of South Australia; Legal Services Commission of South Australia, 2004b, ‘Report on the Asian community consultation for the Family Law and Culturally and Linguistically Diverse (CALD) Communities Project’, Adelaide: Legal Services Commission of South Australia; Pankaj, V 2000, ‘Family mediation services for minority ethnic families in Scotland’, Glasgow: The Scottish Executive Central Research.
[14] Dimopoulos, M 1998, ‘Mediating difference: Utilising cross-cultural training skills to work more effectively with diverse groups’ In T. Fisher (ed), Fourth national mediation conference proceedings. Melbourne: School of Law and Legal Studies, La Trobe University.
[15] Supra note 11
[16] Moore, F S 1973, ‘Law and Social Change: The Semi-Autonomous Social Field as an Appropriate Subject of Study’, Law and Society Review, 7, pp. 719 – 746
[17] Braithwaite, J 2004, ‘Restorative Justice and De-Professionalization’, The Good Society, 13(1), pp. 28-31
[18] Paragraph 5.7.6
[19] Paragraph 5.7.5
[20] Paragraph 5.8.2
[21] Supra note 10
[22] ibid
[23] Supra note 11
[24] ACNielsen, 1998, ‘Family and Child Mediation Survey: Final report’, Canberra: Attorney General’s-Department
[25] Supra note 1
[26] Hadfield, G. H., 2001, ‘Privatizing Commercial Law’, Cato Institute, [online] available at <http://www.cato.org/pubs/regulation/regv24n1/hadfield.pdf>
[27] Paragraph 5.5.1, Code of Practice for Family Mediators
[28] Article 7, EU Directive 2008/52/EC
[29] Paragraph 5.5.3, supra note 27
[30] Paragraph 5.6.4, ibid
[31] Paragraph 5.5.4, ibid
[32] Article 7(a), supra note 28
[33] Haley, J and Neugebauer, A M, 1992, ‘Victim-Offender Mediations: Japanese and American Comparisons”, in Otto, H U and Messmer, H 1992, Restorative Justice on Trial: Pitfalls and Potentials of Victim-Offender Mediation- International Research Perspectives, Dordrecht and Boston: Kluwer.
[34] Marshall, T F 1985, ‘Alternatives to Criminal Courts’, in ibid
[35] Dignan, J 1992, ‘Repairing the Bridge: Can Reparation work in the Service of Diversion?’, British Journal of Criminology, 32, pp. 453 – 472
[36] Supra note 17
[37] Sherman, W L 1993, ‘Defiance, Deterrence and Irrelevance: A Theory of the Criminal Sanction’, Journal of Research in Crime and Delinquency, 30, pp. 445 – 473
The views expressed in this article are those of the author and do not necessarily represent the views of any organization with which he might be associated.
