In broad terms the adversarial system of conducting proceedings refers to a system in which a judge or adjudicator determines a dispute on the basis of information presented by the parties, who have the primary responsibility for defining the issues in dispute and for carrying the dispute forward. The system is based not only on substantive and procedural law but also on an associated legal culture and ethical base. Strictly, the adversarial system relates to a small part of dispute resolution in Australia -- trials in courts. However, the adversarial system has been criticised for its broader, indirect effects on the resolution of disputes throughout Australian society.
In the focus on the adversarial/non-adversarial dichotomy, it is easy to overlook the developing alternative model to our adjudication system which is being fashioned within the common law systems. The alternative model is directed to alternatives to adjudication. This model forms an essentially privatised justice arrangement, which increasingly utilises lawyers, not as partisan advisers and advocates, but as neutrals in a variety of dispute resolution processes arrayed around the litigation system. This model depends on agreement between parties and not on the use of State powers to compel adherence to court and tribunal orders. This developing settlement model has significant implications for the structure, the objectives, the roles and function of the participants within the justice model and those who use such processes
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