Describe the various methods of alternative dispute
resolution (ADR). Assess whether ADR provides a better way for individuals to
resolve a civil dispute than using the court system. (9084/12/M/J/14 Q1)
When both parties are at a civil dispute, normally they will
choose to resolve the civil dispute through a court hearing. The civil cases
will begin in the Country Court or the High Court. Magistrate Court also has a
limited civil jurisdiction. Some of the strengths of using a civil court system
are as follows: Legal aid is available for the court proceedings; Adherence to
the precedent; There are orderliness, finality and authority of the courts; the
judges are better at dealing with the points of law; lastly, there are clear
appeal routes. However, not all the cases are suitable to deal through the
court system due to some problems: Court proceedings are costly, in terms of
time and money. Legal representatives may lengthen the case and increase the
costs. The court proceedings are too complex and formal which lead the parties
difficult to understand. Moreover, the court proceedings will not lead to a
win-win situation for the parties. There will be a winner and a loser. This
promotes adversarial nature of the court cases as it is unlikely to make the
involved parties to maintain or continue their relationships after the court
proceedings have ended. Thus, there is
an alternative to resolve a civil case called Alternative Dispute Resolution (ADR).
ADR is defined in the glossary to the Civil Procedure Rules
(CPR) as a “collection description of methods of resolving disputes otherwise
than through the normal trial process”. Its aim is to avoid the cost,
formality, time consuming, adversarial and intimidating nature of court cases.
The main methods of ADR are arbitration, mediation, conciliation and
negotiation.
Arbitration is a procedure whereby both sides to a dispute
agree to let a third party, arbitrator, to decide. The arbitrator may be a
lawyer, or may be an expert in the field of the dispute. He or she will make a
decision according to the law and the decision is legally binding. Arbitration
is commonly used in commercial contracts between businesses. Where there is an
arbitration agreement in a contract, the Arbitration Act 1996 states that the
courts will normally refuse to deal with any dispute.
Mediation involves the appointment of a mediator to help the
parties to a dispute reach an agreement which mutually acceptable. Mediation
can be ‘evaluative’, where the mediator gives an assessment of the legal
strength of a case; or can be ‘facilitative’ where the mediator helps the
parties to find a settlement that is in all the parties’ best interests. When mediation
is successful and an agreement is reached, it is written down and forms a
legally binding contract unless the parties state otherwise. Mediation has been
applied to trust and probate cases to resolve the conflict within families, to
divorce cases, commercial disputes and also arguments between neighbours.
Conciliation is similar to mediation but then conciliator
takes a more interventionist role than the mediator in bringing both parties
together and in suggesting possible solutions to help achieve an agreed
settlement.
Negotiation can be a very quick, confidential and
cost-effective way of settling a dispute, particularly for small-scale local
matters as between neighbours or between consumers and shopkeepers.
ADR does provide a better way for individuals to resolve a
civil dispute than using the court system. ADR promotes flexibility as the
date, time and place of hearing are all matters for the parties to decide in
consultation with the arbitrator, mediator or conciliator. Thus, parties can
choose what is most convenient for all the people control. It is less formal
and more flexible that the court proceedings as there are no strict procedures
to be followed. It is as formal or as informal as the parties and the
arbitrator, mediator and conciliator wish. It also maintains the relationship
between the both parties. Conciliation and mediation help avoid the adversarial
nature and the win-lose results of court proceedings. This enables parties to
maintain their relationship in the future, once the dispute has been resolved.
However, ADR has its own weaknesses which are unlikely to
resolve some civil dispute than using the court system. There is no doctrine of
precedent, and each case is judged on its merits, providing no real guidelines
for future cases. While arbitrators have a duty to apply the law contained in
court judgments. The decisions of the arbitrators themselves do not act as
precedents. Also, the rights of appeal are limited. In the arbitration process
though awards may be enforced through the court, where the parties agree that
they will consider the arbitrator’s decision to be binding.
In conclusion, ADR has its strengths in settling civil
disputes than using the court system. However,
it depends on the civil disputes
whether which method is suitable and convenient to settle the disputes as the
aim of machinery of justice is to promote the fairness and justice in resolving
the problems.
