The unbalanced future of dispute resolution

There’s a difference between a “justice system” and a “dispute-resolution system.” We need to get our heads around that difference, and its serious implications, very soon.

In a justice system, achieving a just resolution to a dispute takes precedence over the speed and affordability of the process. “Though the wheels of justice grind slow, they grind exceedingly fine” is a phrase quoted approvingly by lawyers and judges (if by hardly anyone else). Justice requires great deliberation and minute examination, but it’s worth the long wait and the immense consumption of resources to achieve it.

In a dispute-resolution system, by contrast, the opposite will be true: the speed and affordability of the process takes precedence over achieving a just resolution. Determining who’s right and who’s wrong isn’t as important as getting the conflict resolved and letting the participants get on with their lives and businesses. If the outcome bears a close approximation to justice, that’s great, but it’s not essential.

Of course, we would all prefer the best of both worlds: a truly just system that delivers fair, speedy, affordable outcomes to all. But our legal system instead dispenses justice slowly and expensively to the very small number of parties with the time and resources to burn in the process of achieving it. The justice system is not designed, funded or operated to be fast or affordable.

But it’s important to note that a fast and affordable dispute resolution system will not require that “the right outcome” be achieved. Has the conflict been settled, even if neither party to the conflict really feels like they got what they wanted or deserved? If so, then the system worked perfectly. It’s called a “dispute resolution” system for a reason — it’s there to resolve disputes. Full stop.

It doesn’t take an overactive imagination to foresee how DR systems could emerge that don’t just prioritize efficiency over justice, but make efficiency the only goal.

Picture, if you will, a populist government with little regard for lawyers and a laser-like focus on reducing public expenditure on the justice system. (Like I say, it’s not that difficult.) Picture that government subjecting family law — the hemorrhaging wound in our current justice system — to a new regime unencumbered by lawyers and judges, one that is statutorily directed to prioritize not the best interests of children, not a fair outcome for former spouses, but the fastest, cheapest way to make family law disputes disappear.

“Spousal support is $X per month for Y months, not a day longer. Parents have joint custody of any and all children, regardless of circumstances. No variations. Fee for this service is $1,000, to be split equally by the spouses. Next!”

A family law DR system along these lines would solve all issues around affordability and timeliness: you pay a basic flat fee for the bureaucratic process, you file your divorce request and household circumstances with the Ministry of Dispute Resolution, and you get your divorce approval 10 business days later by registered mail.

This system would make family law fast and affordable. Family law court backlogs would disappear within a month. And some percentage of the parties involved in this system would accept the tradeoff and be content with the outcome — a larger percentage, I suspect, than many lawyers and judges might be willing to admit. 

But bureaucratic application of simplistic criteria can have damaging impacts on any kind of complex real-life situation; in family law, where issues of unequal power, spousal abuse, and child vulnerability abound, the consequences could be devastating.

Rest assured, I’m not painting this quasi-dystopian picture of a future “DR-only” system to rally support in favour of our current broken-down court system. And I recognize the implausibility that such a DR system might actually come to pass, especially since the courts themselves may have something to say about the removal of family law matters from what they consider to be their jurisdiction.

But I tell you what’s even less plausible than the disturbing scenario sketched out above: the prospect that our family court system will ever realistically get fixed.

I wish we had a fair, fast, and accessible civil justice system. But governments clearly don’t want to spend what's required to build those kinds of systems — and that’s because voters have been equally clear how little they care about adequately funding justice. Witness the unstoppable evaporation of civil legal aid funding in Canada, the U.S., and the UK, and how the average voter in these countries could not give less of a damn about it. We don’t have to like that. But we’d be foolish to continue pretending it’s not true.

I also wish we were able to reform our justice system from the inside, without having to force the hand of government to come do the job for us. But it’s also obvious how powerfully our justice system resists change, principally through the efforts of reactionary judges and recalcitrant lawyers who can’t or won’t take reform seriously. The justice system is the way it is today in considerable part because the legal and judicial professions have decided they can live with it just fine.

Even so, the backlogs and expense and agony of our current system are becoming intolerable, rising to a volume and pitch that legislators can hear, even if lawyers no longer do. So governments are likely to solve the problem by the most expeditious means available: by creating an alternative system that substitutes speed and affordability for justice, no matter what gets lost or broken in the process of doing so.

This is the likeliest outcome of our current path: An increasingly decrepit court system dispensing ever-slower and more expensive justice for the rich, the corporate, and the grievance-obsessed — and running in parallel next to it, a fast, affordable, rough-and-ready DR system for everyone else, one that processes disputes much the same way that factory farms process livestock.

That’s why we should prepare ourselves for the emergence of DR systems, created and run by governments – or perhaps outsourced to the private sector – whose mandate will be simple: Resolve disputes. Get rid of them, one way or the other. Reduce backlogs, fairly or otherwise. We really don’t care which.