Thursday Thinkpiece: Farrow on Privatization

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Civil Justice, Privatization, and Democracy
Trevor C.W. Farrow
Toronto: University of Toronto Press, 2014

Excerpt pp. 5-6, 9-10

Privatization is occurring at a rapid rate in all levels of the public justice system. First, in the civil justice system, there is an increasing and overwhelming tendency to resolve disputes through mechanisms other than the traditional public court process. For example, mandatory court-based mediation rules, judicial dispute resolution initiatives, case management regimes, pre-trial conferences, and cost-based settlement incentives have all become central pillars of the modern civil justice system and its reform. Each of these mechanisms, either directly or indirectly, and in different ways, encourages the resolution of disputes through methods that are outside of the formal, public trial process. Second, alongside civil court initiatives, privatization is occurring in the administrative system as well. Tribunals and other administrative processes are increasingly experimenting with formal and informal alternatives to their traditional hearing-based processes. Third, legislative regimes – typically arbitration statutes – also continue to sanction (and encourage) the resolution of civil disputes outside the formal court system.… Finally, all of these state-based privatized (or privatizing) systems – civil, administrative, legislative, … – operate in addition to the already robust, millennia-old tradition of resolving the vast majority of virtually all disputes through mechanisms entirely separate from formal state processes (private negotiations, religious and community-based dispute resolution tools, etc.).

There are many sound reasons for these privatization trends, including reduced costs, increased speed and efficiency, privacy, enhanced participation and autonomy through increased party choice within and control over dispute resolution processes, and improved access to the tools of justice. That such benefits can result from privatization of dispute resolution is relatively well documented.

However, these trends also have a number of costs in the form of negative impacts on the development of the common law, potential procedural unfairness, and power imbalances between disputants. These costs are all reasons enough, in themselves, to be concerned about these wide-ranging trends. However, my main concern, which is the driving concern behind this book, is the larger question of the negative impact that the privatization of public dispute resolution processes has on systems of democratic governance. Civil society is publicly regulated largely through the twin pillars of legislation and adjudication. The adjudicative function is clearly a central pillar of democratic processes of government. To the extent that we are actively privatizing how we do adjudication, we are in effect actively privatizing a large part of the way we govern ourselves in modern democracies. Put differently, the more we actively and systematically move the resolution of disputes … out of public civil justice and related dispute resolution processes and into private regimes, the less democratic control and scrutiny we will have over the regulation of and influence over large sectors of both our public and private lives.

Unlike the benefits of privatization about which people have been actively talking for some time, there is comparatively very little discussion or debate about the costs of privatizing civil justice. … This lack of understanding is of particular concern given the ongoing and significant institutional reforms that are presently occurring in civil justice systems the world over and the fundamental public interest values that are at stake. However, having raised these concerns, I also want to make it very clear at the outset that the overall goal of this project is not to do away with privatization of civil justice all together. There are many sound legal and policy reasons, as supported by the voices of practicing stakeholders from all corners of the dispute resolution system, to support some aspects of current privatization initiatives. As such, the difficult question becomes one of balance: how to think about and harness aspects of the privatization movement without jeopardizing the underlying civil justice system….

By focusing on the primary elements of the civil justice system … this book in turn has three main goals. First, it seeks to bear witness to the modern and wide-ranging privatization initiatives that are currently defining the way we think about and resolve almost all non-criminal disputes. Given its importance, we need to publicize, politicize and ultimately, I argue, temper (although not eliminate) this ever-increasing move to the private. Second, this book seeks to articulate the benefits and costs of these privatizing initiatives, particularly including their potential negative impacts on the way we publicly regulate ourselves in modern democratic societies. Third, this book makes recommendations for future thinking about, and approaches to, these initiatives. In so doing, it calls on academics, jurists, civil justice reformers, elected representatives, practitioners, and citizens to engage in a robust debate about all aspects of the privatization of civil justice, the future of which will have a fundamental impact on our public processes of democracy. . . .