ADR

Contemporary enthusiasm for ADR reveals a troubling disregard of the powerful critique of informal justice

Contemporary enthusiasm for ADR reveals a troubling disregard of the powerful critique of informal justice

Introduction

The use of non-traditional dispute resolution processes, falling within the rubric of Alternative Dispute Resolution (ADR), is now widely accepted in a variety of dispute contexts. In recent years, similar processes have been adapted and applied in a criminal justice context as part of an overall package of criminal justice reforms.

Across Australian and international jurisdictions, there have been developed a range of 'alternative' methods for dealing with criminal offenders, including programs such as victim-offender mediation, family group conferencing, and circle sentencing(Marc, Mia, 2006). A number of these programs have been applied in Australian jurisdictions, and conferencing in particular has been embraced as a method of dealing with young offenders.

The debate as to whether such processes can or should be applied in a criminal justice context raises normative questions as to the role of the justice system, sociological questions as to the nature of criminal offending and the relationship between the individual, the community and the state, and descriptive questions as to the adequacy of particular justice practices. Such analyses must also involve an understanding of the limits of the law in context - in other words, political and economic considerations must be taken into account.

The Australian Law Reform Commission (ALRC) is currently looking into some aspects of ADR in the criminal justice system in the context of its review of the sentencing of federal offenders(Deborah, 2006). The Discussion Paper and final Report have yet to be released, however issues relating to deferred sentencing orders, the power to impose conditions when discharging an offender, the role of the victim in sentencing and a range of properly funded alternative sentencing options for Indigenous offenders are being considered. Further, the ALRC is aware of the work of African law reform bodies which have addressed aspects of the feasibility of ADR in the criminal justice system.

This paper will provide an overview of the concept of ADR in a criminal context, with a focus on conferencing programs in Australian jurisdictions. Although it is just one of several innovations in criminal justice in Australia, it provides an excellent forum in which to analyse the application of ADR processes in the criminal justice system.

The Evolution of ADR

Throughout the 1970s and 1980s, a range of dispute resolution processes such as mediation, conciliation, and arbitration, all of which fall within the umbrella of ADR, gained popularity as an alternative to traditional litigation. The use of ADR in a variety of dispute contexts has grown rapidly in recent years, and has been institutionalised to a large extent through the introduction of legislative schemes and through the development of professional bodies which have fostered the use of ADR processes.

It has been noted by commentators that ADR processes are not 'new' but rather have been rediscovered, as informal justice mechanisms have long been the dominant method of dispute resolution in many ...