Throwing Babies Out with the Bathwater? — Adversarialism, ADR and the Way Forward

Negative comments about the workings of the adversarial system have resonated from the judiciary, government agencies, lawyers and other stakeholders. In response to such criticisms, there has been an increasing emphasis upon non-adversarial approaches to justice and alternative dispute resolution (ADR). This is a development that should be welcomed. Proponents hold that these ‘new’ approaches to legal disputes will enhance justice in many areas and reduce negative factors such as the cost, time investment, delays, stress and disempowerment often experienced by those involved in the litigation process. At the same time, we take up the Hon Michael Kirby’s point that for ADR to assume all the functions of the court would be to ‘throw the baby out with the bathwater’; but it would also be counterproductive for ADR to too closely assume judicial procedures. We agree that the relationship between the two processes needs to be ‘correct and evolving’ and the success of both hinges largely on the integrity and expertise of the personnel involved and their understanding of conduct appropriate to each process. In this article, we consider the ways in which the borders between adversarial and ADR processes may blur; and the ways in which a lack of understanding of appropriate conduct by participants who are representing parties in mediation may detrimentally impact both processes.