Wednesday, 23 September 2009

Civil justice reform and the role of ADR

Last evening I went to the New Zealand Law Foundation public lecture presented by Dame Hazel Gunn at the Victoria University Law School.. Her topic was essentially the value of the many initiatives to reform civil procedure around the world. She discussed the value of those reforms and critically assessed the lack of any real empirical evidence as the basis for such reforms. She was concerned about the resources being diverted from civil courts to criminal courts, and the inevitable effect on access to the law. Importantly, she challenged the common theory that adjudication is not desirable and that mediation or other ADR methods are superior and should always be used. She identifies that a democratic society requires adjudication to enable people to have some certainty in contractual and commercial matters, and the growing expansion of ADR has led to a “thinning” of the common law. Her lecture will be published as part of the Hamlyn Lectures later this year. I hope both the Rules Committee and the Law Foundation buy a copy!

One of her concerns is the lack of any real empirical evidence that reforms are needed. One must keep an open mind about this-after all once the research has been completed and considered, there may well be a need for change. There was for example a concern in New Zealand that too much litigation was drifting without any impetus. As a result the case management system was introduced. Instead, the cost of litigation has expanded enormously, and many of my colleagues complain about the remorseless onslaught of more and more conferences. Did we establish by any research that cases were drifting? Do we have any evidence that case management fixes a problem, or that there was indeed a problem at all. The District Court Rules in New Zealand have just been radically reformed. Where is the research based evidence that the changes were needed? There may be a need for change, but we must do so on a proper basis.

The real problem in New Zealand, like that in England, is the enormous expansion in criminal work. This sucks away resources for civil work. Perhaps we are looking at the wrong area for reform. The way in which we approach criminal work, as I have suggested in earlier posts may need a review, and indeed the Law Commission is doing so, I hope based on proper research. There are some obvious ideas. Permit better grants of legal aid for sentencing, ensure that over prosecution is reduced and send more work to the District Court. Chief District Court Judge Russell Johnson recently observed that a high percentage of District Court cases are withdrawn, and I would assume the wasted resources are obvious. In addition the prosecution of drug offences has escalated, with a greater number of methamphetamine cases.

So, to enable us to deal with criminal work, we have developed the thesis that ADR and mediation should be used to divert the civil work away from the courts. I am keen to read Dame Hazel Gunn’s Hamlyn Lectures. I may even send a copy to the Rules Committee.

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