The Preliminary Inquiry

Abstract

Dispute settlement is a fundamental aspect of any legal system and one of the prime requisites of a peaceful society or group is that the settlement of trouble cases be by processes which are non-violent in character. Although the courts are our official organs for that purpose, we have long known that many of the trouble cases of our society are settled by methods other than the formal legal process. These methods can be methods either of compromise or of decision.1 Every lawyer is conscious of the extent of settlement negotiated directly between the disputants and is to some extent also cognizant of the amount of negotiated settlement achieved through the aid and intervention of an agreed or volunteer third party (mediation or conciliation). These two methods of settling disputes are our most informal and their essence lies in the fact that the solution achieved is acceptable to the immediate parties to the dispute and that it typically gives each party less than he originally desired or felt was his due. Mediation or conciliation or negotiation are means of compromising disputes on a give-and-take basis and as informal compromises combine to constitute a distinct and well recognized phase of trouble shooting. But when the method of settling a dispute shifts from one of compromise to one of decision, we tend to think primarily of the court process and to overlook or discount the importance of the arbitration process or else to dismiss it as another type of compromise machinery. The thesis of this paper is that in so doing we fail to perceive the importance and generative power of the arbitration process. I have not been able to find complete or even semi-complete figures on the extent of arbitration in this country, but preliminary inquiry suggests that if we lay aside first the cases in which the government is a party and second the accident cases, then the matters going to arbitration rather than to the courts represent 70 per cent or more of our total civil litigation. This suggests that the major decisional process of dispute settlement may be the arbitration and not the formal legal process. If, as further appears to be the case, the trend to arbitration seems to be increasing, then we are now living through a more violent change of judicial machinery than was present when equity emerged into conflict with the common law courts. It is not impossible to envisage a future in which the adjudicatory work of the formal