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Published: Fri, 02 Feb 2018
Ways to resolve a dispute and the most popular…
Alternative dispute resolution, also known as ADR, refers to processes and techniques of resolving disputes, with the assistance of an independent third party, that fall outside of the judicial process. This use of this method of resolution is mainly used in civil cases, commercial cases, contract and divorce and is rapidly growing since Lord Woolf’s 1996 report. Lord Woolf identified some flaws of the court system that gave rise to ADR which was the court system was too expensive to operate and extends the time taken to hear cases, jurors can be unduly influenced by media coverage of their case. The civil procedure rules enacted post-Woolf which encouraged parties to resolve their disputes using a method of ADR before court proceeding are entertained. With these rules in place, Government department would only proceed to court if a matter was not solved via arbitration or mediation
Advice Services Alliance (ASA), July 2009Civil Procedure Rules (CPR) 1.4 requires court to actively manage cases and states that this means:
‘encouraging the parties to use an alternative dispute resolution procedure if the court considers that appropriate, and facilitating the use of such procedure.’
However, the courts cannot force parties to resolve disputes via ADR methods and can be shown in Hasley vs Milton Keynes General NHS Trust and Steel v Joy(2004). This ruling in May 2004 proved that the courts have no power to order parties to mediate, and that to do so might be an infringement of the right to a fair trial under Article 6 of the Human Rights Act 1998.
In contrast, Civil Procedure Rules 44.5 (3) states that courts must take into account ‘the efforts made, if any, before and during the proceedings in order to try to resolve the dispute.’ If a successful party has acted unreasonably in refusing ADR then the courts may refuse a party some of the costs and can be seen in Dunnett v Railtrack plc, The Times, 3 April 2002.
Weakness of the court system that gave rise to ADR:
The adversarial process
In a trial there are the role of victor and failure and the adversarial procedure is a procedure that is adversarial and confrontational. This is a disadvantage because it may destroy relationships and parties may want to continue their relationship after disputes is sorted out.
Most judges are generalists technical points may not be readily understandable by judges and parties may wish to refer to a specialist which requires approval by courts (see CPR 35.4) Thus, incurring cost whereas in ADR they can appoint a specialist in a particular field to act as the judge.
In a court hearing occurs at a time and place specified by courts. ADR can operate at a place and time convenient to parties.
In courts, decisions are made and enforced which does not involve the parties consent. Parties are able to negotiate a settlement between them, to which they both agree using ADR.
As a result of court action not being the best way in resolving a dispute, there a numerous alternative methods that may be used.
Early neutral Evaluation
The use of each form of ADR is normally voluntary and requires a third party to help reach a solution for the issue.
Arbitration is a procedure for settling disputes in which both sides allow a third party, the arbitrator. A decision is made by the arbitrator who will often be a lawyer or other expert. The parties usually agree to this decision which is legally binding. It is done in a relax manner.
Conciliation is similar to mediation, but the Conciliator plays a more active role in bringing the parties together and providing solutions. In some cases the third party can be an outside agency such as Advisory, Conciliation and Arbitration Service (ACAS).
Mediation involves both parties appointing a mediator that suggests a resolution known as a mediator’s proposal. This process can be “evaluative’ where the mediator gives an assessment of the legal strengths or ‘facilitative’ where the mediator function is to help the parties to define the issues. Any decision is written down and forms an agreement which is legally binding unless the parties state otherwise.
Early neutral Evaluation is a process that occurs immediately after a case has been filed in court. An expert views the case and provides a balanced and neutral evaluation of the dispute. The evaluation of the expert can assist the party in a resolution.
Ombudsman is a third party in a government agency which deals with complaints made by client, employees or constituents about the program or policies of an agency.
Some benefits of using ADR are:
Cost – In pursuing litigation, usually a lawyer is required to prepare the case and represent a party. In doing so, it could be costly. In 1998, Professor Hazel Genn carried out a research in the mediation scheme of the central London county court. The research indicated that the cases that mediated, and settled thorough the mediation schemes cost less than cases settled by the court trial process.
Customer Satisfaction – The research that was done by Prof: Hazel Genn (2002)showed that in ADR both the parties involved leave with a high level of customer satisfaction. The reason being that the parties get to set up the terms on the grounds upon their dispute is to be settled.
Speed – Many jurisdictions around the world disputes could take months or even years before the issue can be heard before the judge or come to a verdict. In commercial cases, where more time spent in dispute increases the overall cost and can affect the business. In 1998, Professor Dame Hazel Genn carried out a research which showed that mediation was able to promote and speedup settlement. Numerous cases that appeared before the mediation council 62% of them were mediated and settled at mediation appointment.
Confidentiality Of Results – The final outcome of an ADR meeting can be kept confidential. Thus preventing any type of scandals or scoops on newspaper headlines. Both parties can agree that information disclosed during negotiations can not be used in later proceedings and used for future references.
Despite of it many advantages, there are also disadvantages of using ADR.
Imbalance of Power – In certain situations one side is able to dominate the other, for example, employment and divorce cases, therefore, the court is a better option for the weak party.
Lack of Legal Expertise – Where a dispute involves difficult legal points a mediator or arbitrator may not have the same legal expertise and knowledge as a judge.
No System of Precedent – Each cases being judged on its own merits raises questions about consistency and guidance for future cases.
Enforceability – Most forms of ADR are not legally binding, making any award difficult to enforce.
A Court action may still be required – In some cases ADR fails to resolve the parties’ dispute and court action may still be required. This adds to the costs and delays compared to taking a dispute immediately to the courts.
The future of ADR is, without a doubt, continuing to expand and would play a major part in resolving individual, organizational, and international problems. New hybrid forms of ADR (as in mediation on the Internet) are developing to assist in resolving new problems with greater participation by more parties. Dispute-resolution systems are presently being formed in large organization. (Menkel-Meadow, C., n.d)
Lord Woolf’s civil law reforms impose a duty on judges to encourage the use of ADR in appropriate cases. Access to Justice Act, 1999 states that in time the government hopes to encourage the use of ADR.
The research in 1998 by Professor Genn found that only 5% of cases did parties agreed to use mediation where it was available. This was particularly so where parties had legal representation.
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