Australian Disputes Centre ADR Address 2018 Alternative Dispute Resolution – A Misnomer?
The following excerpt from this highly quotable paper, at page 8, is one example among many, of the compelling reading presented by the Chief Justice. It describes the scope and the constraints of the court. For me it raised and started answering questions about the relationship of two approaches to dispute resolution: the courts and mediation.
“It is important to remember that the issues of fact resolved by a court are only those which the parties choose to present, and that they must be resolved on the basis of the evidence presented by the parties. In the adversarial system there is no practical capacity for a court to conduct its own investigations to establish the truth, nor is there any obligation upon the court to arrive at some notion of absolute or independent truth. Australian courts are not commissions of inquiry and can only view the facts through a prism of the evidence presented by the parties, which may or may not give a true view. Similarly, courts are generally constrained to adjudicate only upon the legal issues presented by the parties and have very little capacity to take the law in a direction not proposed by at least one party. The constraints imposed upon a court by the way in which the parties choose to present their case somewhat diminish the normative value of public adjudication. We should remember that the incentive of each party is to win, not to establish the truth or to develop legal principles.”
As I read it, the excerpt pertains to authority; authority of the people involved, that is, of parties, judicial officers and of the process: substantive and procedural authority.
The excerpt is music to my ears because while it describes aspects of the scope and the constraints of the court; it could, I hypothesise, be transposed to describe parallel aspects of the scope and the constraints of mediation and, for that matter, other processes in the suite of CDR, ‘Complementary Dispute Resolution’.
My ‘Music to my ears 2‘ post will put my hypothesis to your test. I will aim to transpose the excerpt from court (C maj.) to ADR (A maj.), specifically, mediation.