Alternative Dispute Resolution, referred hereon as ADR, can be defined as a collective description of process or mechanisms that parties can use to resolve disputes rather than bringing a claim through the formal court structure. ADR is part of the civil justice system with the United Kingdom. It is a key aspect of the civil justice system and has grown over the past forty years.
The issue in question is to asses to arguments for and against the use of ADR in the Civil Justice system. These alternatives have been developed to deal specifically with the perceived shortcomings of the formal structure of law and court procedure. The increased importance of ADR has been signaled in both legislation and court procedures.
The use of ADR was featured predominantly in Lord Woolf’s Interim Report and his Final Report. In his final report, Lord Woolf urged that people should be encouraged to use the growing number of grievance proceedings methods, like ADR, before taking their cases through court proceedings.
ADR features prominent in the new Civil Procedure Rules (CPR) 1998.Rule 1. (4.) (1) states that the court must further the overriding objective by actively managing cases. Rule1.4. (2) goes on elaborating twelve different examples of what effective case management means. The fifth of these is to encourage the parties to use ADR procedures if the court considers that to be appropriate and to facilitate the use of such procedures.
Rule 26.4 of the CPR 1998 enables judges either on their own account or with the agreement of both parties, to stop court proceedings where they consider the dispute to be better suited to solution by some alternative procedure. If subsequently a court is of the opinion that a dispute could have been effectively settled through some alternative mechanism and this was brought to the attention of the parties, then under Rule 45.5 of the CPR, the party insisting that the case be brought before the court, may be penalized by the court by awarding them reduced or no cost should they win the case. This principle is also illustrated in R (Cowl) v Plymouth City Council [2001] CA.
It is possible to refuse to engage in ADR without subsequently suffering in the awards of cost: Hurst v Leeming [2002].
There are a number of different types of alternative dispute resolution. These have been identified in the Lord Chancellor Department 1998 Consultation paper as being- arbitration; mediation; conciliation; med-arb; expert determination; early neutral evaluation; neutral fact finding; Ombudsmen and Utility Regulations. However, because the scopes of the ADR mechanisms are so wide, only the most common and mostly used forms of ADR will be considered in detail.
The first and the oldest of the alternative procedures is arbitration. This is the procedure whereby parties refer the issue to a third for resolution, rather than taking the case to the ordinary courts. The arbitrator must be impartial, this means, that he/she must not take sides. He is expected to be fair and just and not favoring any party. The arbitrator is expected to decide the case before him according to its facts. In most cases, the arbitrator’s decision is legally binding and so it is not possible to go to the court I a party is unhappy with the decision.
There are many different types of arbitration and most have common features, including-mutual agreement between the parties to arbitrate; it is private and has less formality than the courts; the decision is not made by the individual themselves; the process is final and legally binding and there are limited grounds for challenging a decision.
Arbitration is widely used for international disputes, disputes between major co-corporations, employment rights disputes and consumer disputes. It is governed by the Arbitration Act (AA) 1996 which sets out its rules and provides a definition.
The parties can usually choose an arbitrator, providing they can agree on one. The AA 1996 lays down strict rules for how arbitration should work. However, as arbitration is intended to be less formal, less expensive and more flexible than the court, the rules of evidence are not as strict and parties can usually have a say in how they want the hearing to be conducted.
Once the parties have decided to use arbitration and the process has begun, the parties usually give up their right to seek resolution of the matter elsewhere; such as a court or tribunal.
A second alterative basis on which parties can resolve disputes is by using the process of mediation. Mediation is the process whereby a third party acts as a conduit through which two disputing parties communicate and negotiate in an attempt to reach a common resolution of a problem. The mediator may move between the parties, communicating their opinions, without them having to meet, or alternatively, the mediator may operate in the presence of the parties, but in either situation, the emphasis is on the parties themselves working out a shared agreement as to how the dispute in question is to be resolved.
Mediation is more than a mere negotiation. All types of mediation have the following common features-: it is voluntary-parties can choose to mediator or to; it is private and confidential, the mediator is impartial and independent and the parties can decide how it is to be decided.
Mediation can be used in cases involving only two (2) parties and those involving a large number of parties or entire communities. Mediation is the most wide-ranging ADR process and is used in many area of dispute including, inter alia, business, consumer, divorce and separation, negligence, education and personal injury.
Most mediation meetings are concluded within a day, but it is possible for mediation to take place over several meetings. There are no set outcomes. The range of remedies than can be achieved is as wide as you want it to be. You are not restricted to the outcomes which a court could order. A party could make an agreement which includes an apology, a promise to do or not to do something, compensatory refunds, replacement of goods and so forth.
Mediation is a non-binding process- agreements are not legally binging. However, it has a good track record when it comes to keeping agreements. If no agreement is reached, alternative methods can be used or parties can have recourse to the courts.
Conciliation takes mediation a step further and gives the conciliator the power to suggest grounds for compromise and the possible basis for conclusive agreement. Thus, conciliation has a more interventionist role. The conciliator should be impartial.
Conciliation is private and the terms of settlement are not made public unless the parties agree. The sort of outcomes achieved are similar to those in mediation, including- an apology; explanation and compensation changes in practice or procedure.
Another Mechanism of ADR is the office of the Ombudsmen. Ombudsmen are independent office holders who investigate and rule on complaints from members of the public about mal administration in government, and I particular, services both the public and private sector. Some Ombudsmen use mediation as a part of their dispute resolution procedures. The powers of the ombudsman vary. They are able to make recommendation; only a few can make decisions which are enforceable.
Med Arb is a combination of mediation and arbitration where the parties agree to mediate; bit if that fails to achieve a settlement, the dispute id referred to arbitration. The same individual may act as the mediator and the arbitrator in this type of arrangement.
Although, not in itself a form of ADR, it is deemed necessary to give a brief analysis of tribunals. Tribunals are very similar to a court but rather, it is a statutory establishment in the manner of a court to hear particular grievances or specialist matters of dispute. Examples of tribunals include the administrative tribunal, employment and industrial tribunal. Tribunals do not administer any part of the judicial power of the state. (Attorney-General v British Broadcasting Corporation [1980]. HL) it has a specific jurisdiction as allocated by allocated by Parliament.
The strengths and weaknesses of Alternative Dispute Resolution will now be facilitated followed by a general overview of whether the process in itself is successful.
For many reasons, advocates of ADR believe that it is superior to law suits and litigation. ADR is generally faster. Cases and disputes can be resolved in a matter of weeks or even days, thus taking less time to reach a decision than waiting for the case to go to trial which can take years before a decision is reached.
It is significantly more cost-efficient than the formal courts which then to be expensive. It is based on more direct participation by the disputants, rather than being regulated by the courts, lawyers or even the state.
In most ADR processes, the parties outline the process they will use and define the substance of their agreements. This type of involvement is believed to increase people satisfaction with the outcomes, as well as their compliance with the agreement reached. Thus, the parties shave a certain amount of flexibility in choosing what rule swill be applied to their dispute.
A special characteristic of ADR is that, unlike disputes in the courts for certain matters, there is no jury involved. This is advantageous because juries can be unpredictable and often simplify or decrease damages awarded purely according to whether they favor a particular party.
Most ADR processes are based on an integrative approach. They are more cooperative and less competitive than adversarial court-based methods, like litigation. For this reason, ADR tends to generate less escalation and ill will between the parties. In fact, participating in ADR will often ultimately improve, rather than worsen, the relationship between the parties. This a key advantage where he parties continue to interact after a settlement id reached.
The process is an alternative method and therefore it is not compulsory but should be appropriate. Another unique aspect of ADR which distinguishes it from the court system is that with arbitration, the decision maker is usually an expert in the field of the relevant issue under consideration. This has a twofold advantage. It speeds up the process because considerable amounts of time do not have to be spent educating a judge if there are technical or complicated issues. Secondly, if saves cost because the parties do not necessarily have to employ a lawyer.
Alternative methods tend to be and informal and private procedure. the latter advantage ensures that the parties do not run the risk of any damaging publicity arising out of reports of the proceedings which may affect their reputation and that outsiders do not get access to ay potentially secretive information.
Despite the wealth of advantages in using various alternative methods, many criticisms have been leveled ad possible drawbacks indentified. ADR is not always cheap. Unsuccessful ADR can result in cost being leveled at the same amount for court proceedings. ADR, with the exception of arbitration, do not always lead to a guaranteed resolution. this means that it is possible to invest time and money in ADR proceedings but nevertheless, recourse must be made to the courts. this in turn increases litigation cost.
Not all forms of ADR are quick- in fact, some may require a client to pass through many stages before adjudication. Although theoretically, ADR is not compulsory, it appears to be so. This is evidential from the CPR 1998 and the case of Dunnett v Railtrack. This principle was discussed above.
While these various methods tend to be faster and more, a potential drawback is that the only available remedy is damages and. this amount is limited An individual is likely to get compensation that is extremely low compared to what he could have gotten if the dispute was settled in the court. They do not have jurisdiction to award injunctions or even specific performance.
Although, the parties do not necessarily need a lawyer, they are the possibility of unequal bargaining power, whereby the more powerful, wealthy party will ensure that they have a lawyer present. This is a potential weakness of ADR because the powerful party may use the power to sell off potential litigants.
Critics have concerns about the legitimacy of ADR, arguing that ADR provides a second class justice, undermining the fundamental idea that there should be equal justice to all.
Mediation, although not arbitration, is a non legally binding process. Despite Arbitration begin legally binding, it may be difficult to enforce or overturn a decision. Leave to appeal are only granted din limited circumstances. an arbitrator’s decision is final and is subjected to judicial review in limited cases. also there is no precedent in ADR so parties can not anticipate what a decision is likely to be. .
Another concern is that because the process is private ad not in the public reports or subject to pubic scrutiny, issues that may be considered of paramount importance may never be within the public sphere. However, the confidentially rule may be waived under circumstances: Emmott v Wilson (2008).
Despite the disadvantageous of the process, It is submitted that the process nevertheless plays a vital part in the opening of access to justice. Lord Woolf himself, asserted that the use of ADR had the ‘obvious’ advantage of saving scarce judicial resources and that it offered benefits to litigants or potential litigants, generally speed and reduced cost.
Bibliography
District Judge Trent “ADR and the new Civil Procedure Rules”. New Law Journal (March 19, 1999) 410
Elliot, C and Quinn, F. English Legal System, eighth edition, 2007 (London: Pearson Longman)
Genn, Hazel, “Solving Civil Justice Problems: what might be best?” Scottish Consumer Seminar on Civil Justice, 19 January, 2005.
Lord Woolf, Inquiry into Access to Justice, Interim Report, Lord Chancellors Department, 1995, Chapter 2.
Saddler, Emma. “A Quick Fix or A Long Battle”, New Law Journal 159-428, Mar 20, 2009.
Slapper, G and Kelly, D. The English Legal System, eighth edition, 2006 (Routledge Cavendish Publishing).
Zander, Michael. Cases and Materials on The English legal System, ninth edition, 2003. (Lexis Nexis Butterworths).
Zander, Michael. The State Of Justice”, fifth edition, 2008. (London: Sweet and Maxwell).