Against Settlement? Owen Fiss, ADR and Australian Discrimination Law

International Journal of Discrimination and the Law, Vol. 10, No. 4, p. 191, 2009

28 Pages Posted: 2 Jun 2010 Last revised: 20 Mar 2017

See all articles by Dominique Allen

Dominique Allen

Labour, Equality and Human Rights research group, Department of Business Law; University of California, Berkeley - Berkeley Comparative Equality & Anti-Discrimination Law Study Group

Date Written: June 1, 2010

Abstract

In his celebrated article, Against Settlement, Owen Fiss objected to settlement for, among other things, securing the peace while not necessarily delivering justice and denying the court the opportunity to interpret the law. Fiss sees settlement as a technique for streamlining court dockets, the civil equivalent of plea bargaining. This paper explores Fiss’s criticisms through the lens of resolving discrimination complaints in Australia. It argues that although it is valuable to offer complainants a system for resolving complaints quickly and informally, especially in a jurisdiction in which complainants are often from marginalised groups, it is also necessary to recognise that this system is limited in how effectively it can develop the law and, by extension, eradicate discrimination. In essence, the system’s operation epitomises Fiss’ opposition to settlement. Modifying the complaint resolution system would improve this situation. The paper concludes by proposing three reforms based on mechanisms used in comparable countries: introducing direct access to the court or tribunal; strengthening ADR by making it voluntary and incorporating a ‘rights-based’ approach; and encouraging the regular publication of specific information about settlements and significant cases.

Keywords: ADR, discrimination, settlement, Australia, conciliation

Suggested Citation

Allen, Dominique, Against Settlement? Owen Fiss, ADR and Australian Discrimination Law (June 1, 2010). International Journal of Discrimination and the Law, Vol. 10, No. 4, p. 191, 2009. Available at SSRN: https://ssrn.com/abstract=1618674

Dominique Allen (Contact Author)

Labour, Equality and Human Rights research group, Department of Business Law ( email )

Caulfield Campus
Sir John Monash Drive
Caulfield East, Victoria 3084
Australia

University of California, Berkeley - Berkeley Comparative Equality & Anti-Discrimination Law Study Group

Boalt Hall
Berkeley, CA 94720-7200
United States

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