What’s Wrong With the Adversarial Nature of the Law? (And Do We Need Something Better?)
Enemies, inquisitors or collaborators – who’d you choose? We explore the adversarial nature of the law and what it means for you
3 November 2021
Adversaries, inquisitors or co-creators of dignity, understanding and fairness – which world would you rather live in? We explore the adversarial nature of the law as we currently know it and ask, is it healthy? Or is there a better way?
What is the adversarial nature of the law?
Most countries today, in common law, use what’s called the adversarial system. And, in short, it’s the familiar legal system of two advocates representing two opposing parties – prosecution VS defense – before an impartial court (judge, jury, etc.).
The entire system is built around the two-sided structure, where each side collects and presents evidence as they choose/need and then constructs their cases individually to present to the impartial court who must make the final decision for the parties.
What (if anything) is wrong with taking that adversarial approach?
Now, as you can imagine, in an adversarial system there’s but one goal for either party. To WIN. Win at all costs. And, though the adversarial legal system was created as an improvement on older systems many hundreds of years ago, there are a few “inevitable” problems that crop up with any system built on such zero-sum activity…
It can be personally devastating/destructive to the people involved
As the creator of Collaborative Law (a legal process focused on creating fair settlements instead of resorting to litigation), Stuart Webb explains in his 2008 interview, the rewards of being a good adversarial lawyer doesn’t always outweigh the personal toll it takes to live with a sense of a proverbial ‘target painted on your back’.
He likened his experience as an adversarial lawyer to a cowboy or soldier that can only rest after placing a decoy of themself nearby, because they know there are always enemies around who want to kill them. He says every day you leave the house stressing over what the opposition is going to throw at you. And it’s as true for the advocates as the clients on either side.
Adversarial law doesn’t address the conflict that led to litigation
Transformative Mediator (another process that falls under the broad banner of Integrative Law – see our post on What is Integrative Law?) Dan Simon explains that adversarial law only really “stops the fight that we <lawyers> helped them <clients> start.”
“The stuff we were doing as lawyers was not addressing the conflict,” Dan says. “It seemed to me that our job as lawyers was to do whatever we could to mess with the other side, in the hopes that it would motivate them to cave in…”
Which might obviously feel good for a while for the “winner”, but has a distinct ripple effect in society:
It doesn’t bring closure – and that causes even more problems
In their more recent interview, Dutch Integrative Lawyers Klaartje Freeke & Wikke Monster explain that the adversarial system usually requires each party to “play the game”. Which means hiding certain facts, silencing certain parties and only presenting things that will assure the win as much as possible.
And because of this “smoke and mirrors” game, they’ve found that neither party ever experiences a sense of closure and acceptance.
And you have to wonder whether that’s the reason you have so many repeat offenders and the same people experiencing the same problems over and over again.
What other legal approaches are there?
Well, we’ve mentioned Collaborative Law and Transformative Mediation already, which both broadly fall under Integrative Law, a movement that seeks to create more collaborative, fair and dignified legal systems.
But in any discussion around adversarial law, you have to mention at least its spiritual predecessor, the inquisitorial system.
Adversarial vs Inquisitorial system
An inquisitorial system is an old form of law, dating back to Roman times when disputes were maybe less complicated than today. And the big difference is that in the inquisitorial system, the court (judge etc.) is not impartial – the court actually gathers evidence to support both sides and builds cases itself before passing judgment.
And we know it’s not an ideal answer to the adversarial system because it has its own flaws – mainly corruptibility (the Spanish Inquisition, for example, was basically an order that re-introduced the inquisitorial system). In fact, the adversarial system was developed specifically to help negate the flaws of the inquisitorial system.
And all of that was centuries ago, of course. This leads you to naturally start asking, isn’t it time for something new (and maybe even better)?
The Integrative Legal approach
In a sense, that’s exactly what Integrative Law is trying to achieve – to create a better system than the adversarial. See, the adversarial system is highly focused on reward, punishment and litigation (the courtroom). It’s just about winning or losing. There’s no part of the process that’s specifically designed to bring closure, true collaboration and restoring dignity to both parties.
Whereas Integrative Law is all about creating real cooperation. Avoiding litigation where possible. And giving dignity, closure and peace to both sides.
Explore with us: What is Integrative Law? And then, meet the people around the world who are driving this huge movement for a better legal system in our post: Who are Integrative Lawyers?
And you can also get some remarkable insights on the amazing changes already happening around the world through the stories and videos in our post on the shared values of integrative lawyers.
(Wondering why that’s special? Just take a look at what happens when traditional lawyers resist change a little too fiercely.)
Connect with an Integrative Lawyer near you
Integrative Lawyers are very diverse and you’ll find them all around the world – see the global website.
And, if you’re based in South Africa or the United Kingdom, you’ll find a proud Integrative Legal consultancy in Milkwood.
From Conscious Contracts® to Antenuptial and Cohabitation Agreements, to Conscious Parting, Wills and Legacies. Milkwood even offers Training and Workshops on how to build your own Integrative Law practice. See our Integrative Legal Services.
At Milkwood, we are peacemakers and problem-solvers who want to help make the law a positive experience for our clients. We’re all about compassion, caring, continuous learning, humour, integrity, listening, trust and wellbeing.
And we’d love to share in your journey.
