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resolution options offered with a view to helping the persons in dispute resolve their
differences without going to trial.
[80]
I have given examples of how pulling on the strands of the civil justice web has
brought about unanticipated changes. A movement wishing to resolve disputes out of
court meets up with expanding case loads in the courts and is co-opted to relieve the
pressure. The annexation of ADR to the courts coincides with the tendency of judges
to become more active in directing proceedings and ADR becomes a tool managed by
the court. Judges who begin by promoting the use of ADR to resolve disputes take on
the practice of ADR as part of their function. What began as a tightly structured ADR
technique used by judges becomes an tangle of variant ADR practices. Those practices
may be carried out in a way that is conceived of as complementary to traditional
litigation leading to adjudication, or co-mingled (perhaps integrated to the extent of
being blended) with it.
[81]
Paradoxically, the unanticipated is to be expected when imagination is
unleashed, innovation and experimentation encouraged. Controversy is likewise to be
expected from the tension between polarities and dialectical relations as the strands on
the web are tugged and pulled.
[82]
The civil justice web is large and complex. M uch more could be discussed. I
have not touched on the impact the changes have had on the practice of law, including
the modification of professional codes of ethics to place greater emphasis on the
lawyers duty to seek settlement. I have not opened up the issue of the training of
judges for the new roles. I have spoken little about ways in which the civil justice
system could discourage court action and encourage dispute resolution outside the
court.
[83]
Without a doubt, the web is baited and fertile for the contribution of law
reformers working in collaboration with others. We have much material to work with
when examining the relationship between law reform and ADR and facing the
questions: what is society gaining from the current changes? what are we losing?
where should we be going from here?