Alternative Dispute Resolution

Paper Summary:

This paper examines the current Anglo-American judicial system and its history while also considering some of its drawbacks. In response to these short-comings, the author suggests alternative methods of dispute resolution, such as arbitration and impartial investigation. These methods are discussed in light of their use in other legal systems around the world. The author concludes that a reform of the adversarial systems currently in use in the Anglo-North American world would be desirable because reforms might increase the availability of true justice for large segments of the population.

Outline:
Introduction
The Development of the Adversarial System
The Adversarial System vs. Alternative Forms of Dispute Resolution
Alternative Dispute Resolution: The European Civil Code Example
Possibilities and Problems Relating to the Implementation of Alternative Dispute Resolution Systems in Canada, the United States, and the United Kingdom
Conclusion

From the Paper:

"The justice system of the Anglo-North American world is an adversarial one. A lawyer is an advocate - he or she represents the case and the views of his or her clients. The rightness or wrongness of the arguments of the opposing side is of no concern to counsel. It is the duty of the lawyer to represent the client's case to the best of his or her ability; to make use of whatever legal arguments, statutes, precedents, etc. will advance his or her client's cause. In essence, the judicial system of the United Kingdom, Canada, the United States, and other nations that follow the English legal tradition, is one of a debate between two sides. It is the responsibility of the judge and jury to decide the case based on the relative merits of the arguments for each side. In contrast to the usage of many other nations, there is no independent attempt made to determine the correctness of either argument. Neither judge nor jury possesses the authority to actually investigate the claims made. As well, Anglo-North American law does not require that actionable cases strictly match the provisions of some pre-established code. Precedent is of great importance having, in the absence of positive law to the contrary, the force of law. In this sense, the law is quite malleable. Through careful research, an attorney might discover a useful prior decision that could lend weight to his or her arguments. Again, since there is no adherence to a strict code of laws, as say the Roman Law, or the Code Napoleon, it becomes possible to manipulate existing laws and precedents to suit the situation. Of course, a major difficulty of any system that relies upon the best presented argument is the danger that such an argument may not actual to be correct. Rather, it only appears to be correct. As a result, many have begun to question the utility and fairness of the adversarial system. "

Sample of Sources Used:

• Caenegem, Professor R. C. Van. European Law in the Past and the Future: Unity and Diversity over Two Millennia. Cambridge, England: Cambridge University Press, 2001.
• Cairns, David J. A. Advocacy and the Making of the Adversarial Criminal Trial, 1800-1865. Ed. A. W. Brian Simpson. Oxford: Oxford University, 1998.
• Clark, Scott. "Crime and Community: Issues and Directions in Aboriginal Justice." Canadian Journal of Criminology 34.3-4 (1992): 513-516.
• Hutchinson, Allan C. It's All in the Game: A Nonfoundationalist Account of Law and Adjudication. Durham, NC: Duke University Press, 2000.
• Laprairie, Carol. "Community Justice or Just Community? Aboriginal Communities in Search of Justice." Canadian Journal of Criminology 37.4 (1995): 521-545.

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