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Alternative dispute resolution in civil disputes
In order to explore this question effectively it is necessary to establish what Alternative Dispute Resolution is, the reason for its creation and its involvement in civil disputes. One of the main disadvantages of the official legal proceedings is access to justice. Alternative Dispute Resolution also known as ADR is a mechanism that was introduced under the Legal Services Authorities Act 1987 in order to provide an alternative method to the official judicial procedures in resolving disputes, its main characteristic being to accomplish an agreement between the parties involved without the use of formal procedures or litigation. “Alternative Dispute Resolution, offers parties alternative means of resolving their differences outside actual courtroom litigation…”
The cost of litigation for those people in society who lack financial substance, are unable to afford the official legal process and therefore often loose out in disputes, the introduction of Alternative Dispute Resolution offers them a means to have the access to justice.
“ADR has many supporters. Nevertheless, they too have a responsibility to proceed with care. ADR is not a panacea, nor is it cost free. But I do believe that it can plat a vital part in the opening of access to justice”
Over recent years there has been a great proliferation and faith in Alternative Dispute Resolution, both the legal profession and the public have accepted this as a mechanism as a way of resolving disputes after its several successes. Within Civil justice reforms the Court often recommends that disputes are resolved via ADR. In 1998, the introduction of The Civil Procedure rules allowed judges to terminate any court proceedings if they feel that the issue can be resolved in a form of ADR regardless of the parties involved opinions for instance Kinstreet Ltd v Belmargo Corp Ltd. This essay will put forward the different types of Alternative Dispute Resolution and provide examples of where ADR has been used successfully in several cases including those of civil disputes. The information will then provide a detailed analysis of whether ADR is making progress into the English legal system.
Alternative Dispute Resolution takes many forms all of which serve different purposes and are effective in different ways. They allow disputes to be settled with the appropriate means. The Lord Chancellors department alleged that the official court system should only be used as a last resort in resolving disputes “For most people most of the time, litigation in the civil courts, and often in tribunals too, should be the method of dispute resolution of last resort”. This connotes that the department has confidence in the alternative approaches to dispute resolution.
The method closest to the official legal system is thought to be Administrative Tribunals. A number of tribunals have been introduced over recent years and to date there are almost seventy different types of administrative tribunals set up under a range of Parliamentary Acts. Statistics show that one million cases are heard by these tribunals every year and in 1979 The Royal Commission in Legal Services drew attention to the number of cases heard where six times greater than those heard in the official courts. It is argued that the main purpose of tribunals in the first place was to take the pressure away from the courts of solving small disputes so more time can be spent on cases with greater need.furthermore the difference between tribunals and the courts is often confusing and a matter of uncertainty. Nethertheless, although tribunals mirror the court system they are informal and expose less pressure to those involved less intimidating Tribunals decisions are also questioned by the Council of tribunals set up to enforce the rules made in 1958 under The Tribunals an Inquiries Act revised by those of 1971 and 1992.henceforward Sir Andrew Leggart was appointed by Lord Irvine to evaluate the tribunal system where he found the system to lack any consistency or simplicity.
“… The complexity of the system (if indeed it amounts to a system at all), its diversity, and the separateness within it of most tribunals, may be creating problems for the user and an overall lack of coherence”
The Franks Committee also suggested that there is a need for ‘a clear rules procedure' Yet still highlighted that the advantages of tribunals were “cheapness, accessibility, freedom from technicality, expedition and expert knowledge of their particular subject.”
The cost of tribunals is minimalist as no court building is required and the panel is cheaper to employ than the cost of judges used in the traditional court system. As the tribunals do not have to follow any rules set by a precedent, they are flexible although some will regard the decisions as more important than others will.
Subsequently Arbitration; this involves introducing a third party known as an Arbitrator into the dispute so that it can be resolved. The arbitrator is required to form an agreement between parties According to performs the “judicial function” of settling the parties'. The Arbitration Act 1996 was formed following the Model Arbitration Law, which was implemented by the United Nations Commission on International Trade Law (UNCITRAL). The act itself highlights that the reason for arbitration is to achieve a reasonable resolution at the lowest cost possible.
There are many reasons as to why Arbitration is used. Initially arbitration is regarded as a private procedure where the public cannot gain access to any information that could at all affect either parties or the arbitrator producing a safe and fair proceeding. In addition, as there are only three people involved the disagreement is resolved, much quicker compared to the cases' that adopt the formal legal proceedings as professional representation is not needed for this reason business people are often in favor of the process. The procedure of Arbitration is often cheaper as a result. Premium Nafta Products v Fili Shipping  UKHL 40. In cases such as Premium NAFTA products v Fili Shipping 2007 The House of Lords commented that if the parties are in a dispute that can be thought to be resolved by the process of Arbitration then it should apparent that because of its advantages over the official court proceeding. In order to establish the dissimilarity between disputes that should be arbitrated and which should not.
However, Arbitration is not always portrayed in a positive light it could be suggested that because it is so privatized the public are denied the right to know of any information that could affect them. It has also been said that not all Arbitration cases are successful and if one party decides to challenge, the decision made in the process, then it becomes time consuming and costly to all parties, as legal representation will then be required. An example of refusal of methods of ADR can be seen in cases such as Dunnett v Railtrack plc (2002) the judge held that Railtrack refused arbitration, as a means of resolving his dispute without even considering the outcome that could have been created. Therefore, under rule 26.4 of the Civil Procedure Rules (CPR) that Railtrack Ltd should suffer a detriment in terms of costs when it came to be decided. This illustrates that ADR mechanisms are considered serious by the courts and making decisions like that of ‘Dunnett v RailTrack' the courts are illustrating that the processes are enforceable and should be regard as significant dispute solving mechanisms J Colman put forward that the court “should not go out of their way to find uncertainty… unforceability in the field of ADR” this could be said to be because ADR helps to relieve the pressure on them . Additionally it has been proposed that without Arbitration being immensely privatized it would merely be a system of adjudication.
Mediation is a further form of ADR which is practiced internationally especially in countries such as Africa and Asia; it covers a wide range of aspects for instance, employment, peer and family mediation. Similarly to Arbitration mediation also, involves inviting a third person known as a mediator as a means of expression however it is more informal than Arbitration because the parties never have to meet as the mediator works between the parties communicating each of their opinions. If the parties do agree to meet then the presence of the mediator is required. Baruch Brush and folder American writers define mediation as ‘an informal process in which a neutral third party with no power to impose a resolution helps the disputing parties to reach a mutually acceptable settlement'. In 1998 a report conducted by Lord Chancellors Department found that 62% of cases where efficiently completed by the use of mediation without being referred to court and also found that mediation was in effect successful in dealing a vast majority of cases raging from divorce to personal injury. In divorce especially, the use of mediation was strengthened immensely due to the Family Law Act 1996.there are several reasons as to why mediation is used, Firstly it can be arranged within a matter of hours decreasing the costs that can occur through resources. The average cost of mediation is £100 per party which is minimalist compared to the thousands of pounds paid for professional litigation. Furthermore litigation entails privacy issues where mediation is confidential and rather than having a ‘winner and a loser' like in court cases there is a mutual agreement to where both parties occur a benefit. ‘Mediation has led to more efficient use of private and public dispute resolution resources, consequently mediation has been accepted by the public who are willing to put faith in mediation as a dispute resolution therefore suggesting that they would opt for this mechanism in their own disputes. In the Unitited States Mediation over the last three years has increased its use from just ten percent to fifty percent. Although in the United Kingdom since 1998 the settlement rate has not exceeded 50 percent even with the introduction of the voluntary mediation scheme, figures suggested that the settlement rate had decreased to 40 percent in 2000.on the other hand between July 1, 2008 and June 30, 2009, 174 cases surrounding mediation where reported of those 130 cases where settled as a result of mediation or an assigned judge. The 44 cases not solved are waiting for a resolution. There are a further number of limitations to the process of mediation. If an agreement cannot be subdued by both parties then the process will have been time consuming and costly to the parties. The Automatic Referral to Mediation scheme (ARM) suggested that if the dispute was not settled then an average of £1000 to £2000 pound could be added to the costs. In order for the process to be private, a great amount of trust and confidence must be placed on the mediator and in the parties, themselves as one may be looking for publicity to help their cause. Lord Woolf's opinion concerning Cowl v Plymouth City Council demonstrates the belief in which mediation is an effective form of resolving disputes especially those concerning the public.
“If they could not do this without help, then an independent mediator should have been recruited to assist. That would have been a far cheaper course to adopt. Today, sufficient should be known about ADR to make the failure to adopt it, in particular where public money is involved, indefensible."
In addition to mediation, the process of Conciliation has been introduced as a form of Alternative Dispute Resolution. It is advancement on mediation in the terms of the mediator/conciliator being able to suggest and enforce the grounds for which a compromise should be made. The Disability Conciliation service is almost identical to mediation as the parties meet but in ACAS conciliation the conciliator usually negotiates terms of the agreement to the parties individually often over the phone. The term Collective conciliation is illustrates talks between two representative groups these are often unions and employers. ACAS is often brought in to provide conciliation services for this type of situation. In 2002, the statistics for settlement rates for the use of conciliation in disputes was 81% insinuating a high success rate, which implies that this form of ADR is making a difference to society.
The use of both Arbitration and Mediation is known as Med-arb it does not combine them into one solution, it merely attempts Mediation as a method of resolving any disputes of the issue in question and if it is unsuccessful, Arbitration is the commenced to form a binding agreement between the parties. This process could be suggested as a persuasive mechanism so that parties come to an agreement via mediation as if they do not a arbitrator will make the decision for them.
In the same way, arbitration and mediation introduce a third person Adjudication uses an adjudicator to make a formal decisions based upon the evidence and statements presented to them via writing from both parties. In relation to the official Courts, an adjudicator is presumed to be the judge. Adjudication is commonly seen to be involved in cases surrounding trade for instance consumer complaints. The features of Adjudication are similar to that of both mediation and Arbitration but the adjudicator is often specialized in the area that the dispute focuses upon.
There is also a parallel method of Alternative Dispute resolution that are not used as often to those noted above.
Negotiation is the process whereby both parties come to a compromise with the use of a third person known as the negotiator. It has been suggested that negotiation takes place in all forms of ADR as it is defined as the communication between parties that effectively results in a resolution to their dispute.
There are also methods of Alternative Dispute Resolution that are less popular than the ones noted above for instance A mini trail allows the parties involved to present their case to a panel usually with the help from a mediator. Subsequently the panel then negotiate an appropriate outcome based on the presentations. This particular process can be expensive as the panel is requested to have experience and knowledge of the aspect that causes the disagreement. They can often be a long procedure and are regarded unsuitable for cases involving personal injury or claims of a small amount. They are also rarely considered legally binding. Additionally Expert Determination is a process, which also involves introducing a third, party like arbitration and mediation although the decision made in this ADR is final and cannot be appealed against giving the parties closure and assurance. This is considered appropriate when a solution is needed quickly. It has been highlighted that Expert Determination is quickest and least expensive out of all of the Alternative Dispute Resolution processes. Like most of the ADR processes, it is confidential and private. What is more, the ombudsmen procedure involves the advice from an Ombudsman, which is person who supplies the parties involved with advice in resolving their disagreement. After they have assessed both parties' complaints. Evidence of presence of Ombudsmen is established in The European Community his role is to investigate maladministration in issues that surround the community. Also The booklet "The Ombudsman In Your Files" 1995 was introduced by the Cabinet Office it illustrates the purpose of an ombudsmen and what the parliamentary ombudsmen role is and what happens if a complaint is made this procedure is believed to be an alternative to the Tribunal System. This has been thought to be a mode of Alternative Dispute Resolution, in that it is an alternative to formal court proceedings.
Overall, the above evidence seems to suggest that Alternative Dispute Resolution is encouraged by the courts and in some cases enforced. It would be fair to say that the process of ADR has had a major impact on the way disputes are resolved.
Under the Arbitration Act 1996, the role of the court has become minimal and in forms such as Arbitration the arbitrator's involvement has increased fulfilling the focal purpose of Alternative Dispute Resolution; to reduce the workload of the official formal courts. Thus suggesting that it is making slow progress within the English legal system.
What is more the Law Society's civil litigation committee and it ADR committee conducted a report which was issued in April 2005 found that on the basis of Halsey v Milton Keynes NHS Trust the ratio decedendi made by LJ Dyson suggests that Alternative Dispute Resolution is making progress in society in solving civil disputes.
"All members of the legal profession should now routinely consider with their clients whether their disputes are suitable for ADR"
A review of cases involved in the form of mediation as an Alternative Dispute Resolution, underlines that there has been an 83.5% success rate ranging from 1993 to 2005, thus suggesting that mediation can be accounted for as a way of resolving disputes successfully. Therefore bringing to light that ADR is working at being accepted by the court as a way of resolving disputes and by the public whom use it.
It is evident that ADR has become increasingly imported over recent years making progress in resolving issues that involve individuals of the state and the organizations in which the state evolves. Gary Slapper and David Kelly propose that the case of Burchell v Bullard 2005 insinuates that ADR is a better way than the courts in solving civil disputes. “… A small building dispute is par excellence the kind of dispute which, as the recorder found, lends itself to ADR”.