Is the Adversary System Really Dead? Dilemmas of Legal Ethics as Legal Institutions and Roles Evolve

Abstract

This article reviews the history of dispute processes from early English legal history to the present to contest the notion that the vanishing trial is either a new or necessarily problematic development. Anglo-American legal procedure has always been characterized by process pluralism or choices of different fora for different kinds of dispute resolution. The article reviews some of the key developments in movements from trial by ordeal to trial by court and suggests we are in an evolutionary moment or transition away from trial by court to some other process adaptations. The essay then reviews how different processes, including various forms of alternative dispute resolution (not necessarily new, but adaptations of older forms) may require different foundational, orienting and ethical principles and practices and the article suggests what underlying values might be appropriately considered - collaborative human problem solving and recognition of the complexity and multi-party, multi-issue nature of modern legal disputes.

Keywords: Dispute Resolution, Litigation, Legal History, Legal Ethics, Jurisprudence