Common Law countries

In today's overly litigious society, the common view remains that litigation is one of the most effective means of addressing and settling a dispute amongst parties. By taking unresolved or unresolvable matters to court, the court by its powers in accordance with the law could make a determination on behalf of the parties. However, in recent years, society has become more aware of and increasingly utilised alternatives or non-adversarial procedures to settle the diverse range of matters that might otherwise had to have been resolved through litigation.

Avenues such as alternative dispute resolutions (ADR), which most notably encompass methods such as arbitration, conciliation and mediation, are a swifter and cheaper viable alternative to litigation, used by tribunals and other organisations including court. This observation report seeks to provide an insight into the differences of the adversarial nature of litigation and other non-adversarial justice alternatives. In Common Law countries, such as Australia, there are two primary systems of law that govern how litigation is conducted. These include the adversarial system of law and the inquisitorial system of law.

The commonly applied adversarial system of law is one in which relies on the skill of each advocate representing their party's best interests, in addition to a neutral person, most notably the judge, who seeks to determine the truth of a case, and hence derive an outcome. The role of the judge in such a system is to act as an arbiter of justice, by ensuring that fair process is followed rather than illicit facts and evidence from either party. It is the responsibility of the parties for defining issues in dispute and for investigating and advancing the disputes.

1 On the other hand, some courts feature the inquisitorial system, where the court seeks to be actively involved in determining the facts of the case. Under this system, the judge plays a more active role both prior to and during the trial phase, and may even participate in the fact-finding inquiry. 2 In contrast to the adversarial system, the advocates for the respective parties play more of a passive role, allowing the presiding judge to conduct his or her own enquiries into the presented facts, rather than depending on the parties being able to identify their own interests and fight their own battles.

However, whilst the two aforementioned systems of law are successful in their own right, they are usually confined to large commercial disputes, or criminal proceedings. As a result, such systems are not suitable in all areas of dispute resolution. Arenas of law such as family law, or civil disputes on a smaller scale can't readily be resolved through an adversarial or inquisitorial court, particularly due to the uneconomical nature of doing so, or the fact that the parties have no, or little access either to information or to adequate representation.

Alternatives to litigation are necessary for those seeking to settle small disputes by taking them outside the court arena, with an emphasis on resolving the dispute and orchestrating settlement. Alternative dispute resolution is a means of achieving non-litigious resolutions of disputes. Glasser,3 in his article Dispute resolution: Civil Justice and its Alternatives, suggest that even before lawyers were showing an interest in alternative dispute resolution, there were indications of increasing self-consciousness about their role in settlement-seeking activity and negotiations generally.

For the purposes of this observation report, the Victorian Civil and Administrative Tribunal (VCAT) was chosen as the place to observe non-adversarial practices within the Victorian justice system. VCAT's User Service Charter states VCAT's purpose is: to provide Victorians with a Tribunal that delivers a modern, accessible, informal, efficient and cost -effective civil justice service".

The establishment of VCAT served as a one stop shop, that dealt with a range of disputes ranging from the purchase and supply of goods, to discrimination to residential and retail tenancies. VCAT deals with such disputes via mediations, hearings or compulsory conferences, which effectively takes such disputes out of the court arena, making it more economical for those parties who can neither afford legal costs or time in seeking a resolution to their disputes.