Year

1996

Degree Name

Honours Masters of Law

Department

Faculty of Law

Abstract

The trinity of cost scales that reward activity, fear of being sued for negligence and an adversary based litigation process drive lawyers to leave no stone unturned in litigation at a cost to the parties that is beyond their ability to pay and which often overwhehns the amount of the actual dispute. "Every system contains a percentage of errors; and if by slightly increasing the percentage of error we can substantially reduce the percentage of cost it is only the idealist who will revolt." The idealists have reason to be cautious. A cheap efficient system may contain the seeds of a different set of problems. The German experience suggests that too great an efficiency coupled with certain and ftill cost recovery can lead to excessive litigation. This may not increase access to justice by the needy but rather may fiirther empower the powerful. This causes a substantial expense to the community both in publicly funded judicial expenses which are much higher per capita than is the norm in Europe and in legal resources generally. The United States of America has moved towards judicial case management and the promotion of alternatives to adjudication but there remains a strong thread in the literature of that country in defence of the adversary trial process. The judicial process as we know it is best at dispute resolution by trial. It is open, has safeguards and is perceived by litigants as carefiil, unbiased and dignified. It generates a body of decided cases to guide future disputants. It is said that its procedures express our value structure and once engaged it ensures that society's interests are protected in any resolution of the dispute. If litigants are forced to resolve disputes by methods outside that process (mediation and other alternative dispute resolution- 'ADR') that involves a dilution of the protection that the trial process offers and calls into question the very need to have the judiciary. Although they are uniquely empowered and tramed in the trial process that is not so with ADR.

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