Alternative to What? Theories of Litigation, Procedure and Dispute Settlement in Anglo‐American Jurisprudence: Some Neglected Classics

Abstract

Concern with different institutions and methods of dispute settlement has a long history.But the rapid growth in lawyers' interest in 'alternative dispute resolution' (ADR) is widely perceived to have gathered momentum in the late 1960s in the United States.'In the past twenty years there has indeed been a remarkable growth in the 'ADR industry,' exemplified by the development of organisations, courses within law schools, continuing legal education and an extensive literature.The main stimuli appear to have been largely pragmatic and political rather than theoretical or 'scientific.'Three particular concerns seem to have predominated: a feeling on the part of the American legal establishment that the court system was becoming intolerably overloaded by an increased volume of civil claims and criminal prosecutions; a felt need, on the part of professionals and others, for specialised private fora to serve particular interests (eg commercial arbitration); and a view that over and above the concomitant increase in congestion, delay and expense, the system was incapable in more fundamental ways of living up to the ideals of 'access to justice' for all.When a 'movement' relating to law develops in the United States, one outcome is almost invariably a massive, confusing and largely unsystematic body of literature of variable quality.*The ADR movement is no exception.In so far as any general patterns can be discussed from the American ADR literature, perhaps three main strands can be differentiated: first, a body of writing that is concerned with institutional design, in which the central questions relate to the appropriateness of different methods of dispute resolution to various types of 'dispute.'The pioneering work of Lon Fuller in the latter phases of his career is a prominent e ~a m p l e .~ Second, there has been a series of essentially political debates about the desirability and necessity of encouraging and developing ADR on a large scale.The diagnosis, prescriptions and the motives of the enthusiasts were challenged by sceptics of varying political persuasions: for example, radical critics such as Jerold Auerbach and Richard Abel, while doubting that 'justice' was routinely achieved in litigation, argued that the alternatives prescribed by advocates of ADR were no more likely to enhance either access to or delivery of justice in practice and that the net effect of the movement *Faculty of Laws, University College London.This paper was presented to an Anglo-Soviet Colloquium in Moscow in June 1990 and is published here without revision or adaptation.Some of the ideas are developed at greater Iength in W. Twining, Refhinking Evidence (Oxford: Blackwell, 1990) (hereafter RE), esp chs 3, 5 and 11.

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