Civil justice reform: Some common problems, some possible solutions

Litigants are becoming increasingly aware of the benefits of settlement, especially early settlement, over trial. So also are litigation lawyers. That is why civil trial rates throughout the common law world are declining. Notwithstanding that, our civil justice systems continue to assume a trial and judgment, making little or no provision for early, fair resolution of disputes by agreement. Given that attempts to reduce the cost of resolution of disputes by trial and judgment have largely failed, our systems should focus more on resolution by agreement and the provision of means by which that can be achieved more fairly and more cheaply. This article explores some ways of doing that. It also reflects on some problems arising from low trial rates and the need to resolve them. It suggests some possible solutions to these.