Law Reform and ADR: Pulling Strands
in the Civil Justice Web
by Margaret A. Shone, Q.C.
A. The Civil Justice Web
[1]
Justice systems the world over are in pursuit of improved methods of resolving
disputes.1 At this juncture in history, civil justice systems rooted in the English
common law tradition are in a particularly active state of flux. The traditional
approach to dispute resolution is seen by many as problematic: litigation is too
adversarial, takes too long and is too costly. Some observers consider the extent of the
change occurring during the current transition as equal in magnitude to changes that
were occurring during the time period leading up to the merging of law and equity
under the Judicature Acts of 1873 and 1875.2
[2]
The responses to the criticisms have taken a variety of directions. One response
has been to encourage dispute resolution out of the courts. This approach has the
potential to reduce the court caseload.3 Another response has been to widen the range
of dispute resolution processes available in the courts, thereby enlarging the sphere of
civil justice associated with the courts. Yet another response has been to increase the
involvement of judges in managing the litigation process, including promoting dispute
resolution by means other than trial. In some jurisdictions, judges not only promote
dispute resolution using processes other than trial but also offer their services to
facilitate dispute resolution by agreement between the parties.
[3]
Unquestionably, a major transformation is under way. The traditional ways of
doing business are changing.4 It quickly becomes apparent that ADR three simple
letters that have come to symbolize a vast change in approach to dispute resolution
looms large in connection with the current reform activity.
[4]
In recent remarks, the Right Honourable Beverley McLachlin, P.C., Chief
Justice of the Supreme Court of Canada, drew on the image of a spiders web put
forward by her predecessor, the Right Honourable Antonio Lamer, P.C.:5
I sometimes think of these sorts of cases as being somewhat like a
spiders web. If you pull on one strand of the web, the entire structure
moves, but not necessarily all in the same direction. The implications are
widespread and, at times, hard to foresee.