THE FOUR FORMS OF CIVIL JUSTICE

NATURE OF CIVIL JUSTICE

Civil justice comprises the various processes enabling disputants to resolve, or at least terminate or narrow, their disputes. ‘Processes’ should be accorded a wide reference and should not be confined to systems supported directly by national legal systems and national governments. In this wider sense, civil disputes can be adjudicated by courts, resolved by arbitration, settled by mediation, or the parties can spontaneously reach unmediated agreements of settlement. Hence there are ‘four main forms of civil justice’: (i) the judicial process, involving court proceedings; (ii) arbitration; (iii) mediation; and (iv) (unmediated) settlement.

DISTINGUISHING THE FOUR FORMS OF CIVIL JUSTICE

Does the Process Involve a (Neutral) Third Party?

It will be noted that court proceedings, arbitration, and mediation involve the intervention of a neutral third party. Unmediated settlement does not result from, nor need it be in any respect facilitated or induced by, the direct intervention of a judge, arbitrator, or mediator. In that sense it is an autonomous and informal style of dispute-resolution. However, if the settlement occurs aft er commencement of court or arbitral proceedings, it will be common for the parties to seek a consent judgment by the court, or its arbitral equivalent, in order to give (further) effect to the settlement (14.86).

Is a Decision Imposed or Instead an Agreement Reached?

Mediation (1.01 ff, vol II) differs from court proceedings and arbitration because the mediator does not (unlike the court or arbitral tribunal) impose a solution or decision. Instead the mediator merely endeavours to assist parties to reach accord.

Is It a Public or Private Process?

Information confidentially disclosed during settlement negotiations, whether or not involving mediation, is protected by the ‘without prejudice’ privilege. This imposes an external shell of protection and an internal bond of secrecy: thus the parties’ discussions enjoy a high level of protection from outside scrutiny (12.49), and neither party enjoys the unilateral right to disclose or make use of that information. To do so he must instead obtain the other party's consent.