The expansion of the role of government in the lives of its citizens has brought with it an increasing number of controversies between citizen and state. There is a perception too that as a people we have become more litigious. All this has resulted in an increase in litigation, aggravating the problems within the current judicial structure, causing delays from the ensuing backlog of cases, higher costs to the parties and the taxpayer, the bureaucratization of dispute-processing systems and exaggeration of minor disputes as a result of regulations, delays and costs. Furthermore, both court congestion and high cost are used as bargaining tools to extract settlements which may otherwise be unacceptable.
For many, however, the concern runs deeper. There is a growing awareness that the corner-stone of our judicial structure, the adversary system itself, is not the most appropriate for the effective resolution of all forms of disputes; it may not be capable of resolving a problem to both parties' satisfaction and may easily cause disputes to escalate to more serious levels. Moreover, even though the vast majority of disputes are 'resolved' outside the courtroom, they are still resolved 'under the shadow' of this adversary mentality; for instance, the threat of instituting court proceedings may be enough to exact an inappropriate settlement. It is often unfortunate that the adversary mentality permeates all resolution processes, polarizing the parties and exacerbating their disaffection. Still, negotiated or 'lumped' settlements far exceed in number those resolved through other means. On many occasions the 'threat' of suit is therapeutic where otherwise stubbornness might prevail.
The basic philosophy of the adversary system is that it is the best means to find the truth through the testing of the various versions of the disputants by putting each to the proof of his or her claim. Correlatively the burden of establishing legal entitlement rests with the litigants. The system is based on individualistic premises: each party is presumed to be equally motivated and competent to investigate the facts and to present his or her case to a passive, neutral and independent court and each is presumed to have equal opportunity to pursue the claim. Implicitly the system presumes adequate resources in both time and money in order to do so. Each party confronts the other, as an adversary, before the court, each having an opportunity to present her or his story, to a judge, whose business is to decide the dispute under law. Eventually so the theory goes, the truth will emerge at least to the extent it can be discovered.
However, it is generally accepted that the practice does not work nearly as well as the theory, despite an absence of empirical evidence either way. Each party will usually not have equal or even adequate time, money, motivation or ability to present his or her case properly. Furthermore, because the system is in part predicated on competitiveness, combativeness and confrontation, the emphasis is less on the best resolution of conflict but rather, oftentimes it seems, on 'winning at all costs'. It is little wonder that this system has been labeled 'the sporting theory of justice'. The end results include a lot of wasted time and money and a perceived lack of