The concept of the rule of law, as first outlined by A. V. Dicey in his 1885 book, Introduction to the Study of the Law of the Constitution, was a relatively simple, but powerful ideal - the law applies to all, regardless of power or position. It has been expanded by other legal philosophers over the years, including Rawls and Lord Bingham, and it has suffered the same overuse and politicisation as freedom of speech, democracy and human rights. But its central concept remains as powerful, to lawyers if no one else.
The problem with its expansion is that it becomes everything to all bodies, covering the legitimacy of the passing of laws, their universality and enforcement, and underlying values. While these norms are also important, they should not be bundled up with the core concept, in my view. While the proposal that the meaning of the "principles of the Treaty of Waitangi" (note the use of the English name, rather than Te Tiriti o Waitangi signed by the majority of Maori, and having differing shades of meaning still under debate today) may be the subject of a referendum and subsequent legislative change, would such an event breach the concept of the rule of law? To the extent that such an event would be the imposition of a majority view over the legal rights of a minority, perhaps.
That question is beyond the scope of this article, and the skills of its author. The issue to be raised here is the role of the rule of law in dispute resolution, whether by the courts, in arbitration or by agreement in mediation.
The starting point must be that the rule of law assumes not just that those in power are subject to the law in the same way as any other citizen, former President Trump's position notwithstanding; but also that those in power, government officials in charge of administrative actions, those in positions of financial power and every day citizens understand the law and generally abide by it. Without general compliance and respect for the laws, no police force or court system could possibly be large or efficient enough to enforce all laws. That is the nature of civil society, which we largely enjoy.
Problems do, however, arise with enforcement. It is one thing for complex and difficult disputes, based on genuine and reasonable disagreement to go through a disputes process. Quite another when the courts appear to be buried in a caseload which has no end in sight, and which cost and delay are significant factors to be considered. Can it be said that, without enforcement, the rule of law continues to apply? It is no surprise that mediation is often proposed by lawyers and the courts to ease that burden.
At this point, we begin to stray from the rule of law as a binding concept. The Harvard model of mediation, outlined in Fisher & Ury in their seminal work Getting to Yes promotes interests over rights based negotiation and sets out procedures for facilitative negotiation, where the mediator reality tests the parties' expectations and, notionally, neutrally guides the parties to settlement. In the words of Dame Hazel Glenn in her 2009 report, mediation is not about just settlement, it is just about settlement. While that statement is, perhaps, more than a little glib, it does contain an element of truth.
So, if we take a purist and Diceyan view of the rule of law, we are not talking about the validity of laws, but about their compliance and, failing that, enforcement. If the laws cannot be efficiently and effectively enforced in the courts or applied in the mediation room, can it be said we live in a society governed by the rule of law?
There are three answers to that question (perhaps more).
First is that mediation does not need to be a simple horse trade, involving the mediator unleashing well honed tricks and stratems to get disputants to settle disputes without regard to their legal rights, and against their better judgment. While there is much of value in what Fisher & Ury propose, to be durable it seems to me that any agreement should ideally be concluded with the parties understanding the strengths and weaknesses of their legal respective positions and, in that context, why settlement is their best option. This is perhaps more applicable in construction and complex commercial disputes.
Second is in the proactive use of arbitration, making the most of the flexibility that the Arbitration Act provides. A careful reading of the Act establishes that the "High Court Rules" approach to arbitration is not required, and is largely unhelpful. As commented by Hon Rhys Harrison at a recent AMINZ Construction Arbitration Day, lawyers are not being sufficiently fleet of foot or flexible to make the most of what arbitration has to offer. There is considerable flexibility for the arbitral tribunal to set the procedures to proportionately suit the issues in dispute.
The third, and final point, is expanding the use of adjudication to cover commercial disputes - an idea floated by Chris Booth at an AMINZ conference some years ago. Under the Construction Contracts Act, a party to a construction contract (as defined) may bring a dispute to arbitration as of right (this cannot be contracted out of). The procedure is swift and relatively simple, involving the issue of a notice, appointment of an adjudicator, exchange of papers and submissions, followed by a binding (but not final) adjudicator's determination. The whole process is anticipated to take 6 weeks or so, though there are grounds for this to be extended.
One of the most significant benefits of adjudication, aside from its speed, is that it results in a reasoned decision. The parties must comply with that decision, but it can be overturned by a court or arbitrator; not on appeal, but as a hearing from scratch (de novo is the latin tag). The reality is that, in the construction industry, this rarely happens. Most parties abide by the decision of the adjudicator.
While in Diceyan terms, the rule of law relates to the application of the law (as opposed to rule by law, as would have been the case in Europe at Dicey's time); not to its validity, nor to underlying considerations of human rights or international law. Those issues are covered by other norms. However, the rule of law ultimately relies on access to justice - a matter of ongoing debate, fretting and frustration.
Note - the underlying ideas behind this article have been in my mind for some years (at least since completing the LEADR mediation course in 2003). I was stirred into action, or perhaps nudged out of lethargy, on a cold spring Sunday, reading Good Vibrations by Frederick Wilmot-Smith in the London Review of Books. I confess that the title rather brought to mind a song I loved in my childhood, rather than the niceties of the rule of law - a subject I am also fascinated by.