Alternative Dispute Resolution – UK Perspective.

In order to fully investigate this subject, it is important to define Alternative Dispute Resolution, the motivation for its formation, and its role in civil disputes. Access to justice is one of the primary drawbacks of formal judicial processes. Alternative Dispute Resolution, also known as ADR, is a mechanism that was established by the Legal Services Authorities Act of 1987 in order to provide an alternative to the official judicial procedures in resolving disputes. Its primary purpose is to achieve an agreement between the disputing parties without the use of formal procedures or litigation. Alternative Dispute Resolution provides parties with alternatives to judicial action for settling their disputes.

Alternative Dispute Resolution enables individuals in society who lack financial resources, are unable to finance the formal legal procedure, and as a result often lose in disputes, a way to access justice. Many individuals favour ADR. However, they too are responsible for exercising caution. ADR is neither a panacea nor a free service. But I think it can play a crucial role in expanding access to justice. In recent years, both the legal profession and the general public have recognised Alternative Dispute Resolution as a method for settling conflicts, due to its many achievements. Within civil justice reforms, the Court often supports alternative dispute resolution (ADR). In 1998, the adoption of The Civil Procedure rules permitted judges to end court proceedings if they believe the dispute may be addressed via ADR, regardless of the parties’ perspectives, as in Kinstreet Ltd. v. Belmargo Corp. This article will discuss the many methods of Alternative Dispute Resolution and present instances of incidents in which ADR has been used effectively, including civil conflicts. The data will next be analysed in detail to see if ADR is gaining ground in the English court system.

ADR comes in a variety of forms, each of which serves a distinct objective and is beneficial in a different manner. They enable for conflicts to be resolved via the right ways. The department of the Lord Chancellor argued that the formal court system should only be utilised as a last resort to settle conflicts. “Litigation in the civil courts, and sometimes in tribunals as well, should be the technique of last option for the vast majority of individuals the vast majority of the time.” This indicates that the agency has faith in alternative conflict settlement methods.

Administrative Tribunals are seen to most closely resemble the formal legal system. In recent years, a number of tribunals have been established, and there are now about seventy distinct kinds of administrative tribunals established under a variety of parliamentary acts. Statistics indicate that one million cases are handled by these tribunals annually, and in 1979, the Royal Commission on Legal Services brought attention to the fact that the number of cases heard was six times that of the official courts. It is stated that the primary objective of tribunals was to relieve courts of the burden of resolving minor disputes so that more time might be spent on matters with more need. In addition, the distinction between tribunals and courts is sometimes murky and ambiguous. Nonetheless, while tribunals resemble the court system, they are informal and subject people engaged to less stress and intimidation. The Council of tribunals, which was established to enforce the norms enacted in 1958 under The Tribunals and Inquiries Act and updated in 1971 and 1992, also questions tribunal rulings. Lord Irvine subsequently appointed Sir Andrew Leggart to study the tribunal system, which he deemed to lack uniformity and simplicity.

“… the system’s complexity (if it is actually a system), its variety, and the separation of most tribunals within it may be causing challenges for the user and an overall lack of coherence”

The Franks Committee also advised that “a clear rules process” is necessary. Nonetheless, it was emphasised that the benefits of tribunals were “affordability, accessibility, independence from technicalities, promptness, and subject matter expertise.”

Tribunals are inexpensive since no courthouse is necessary and the panel is less expensive to staff than judges in the conventional court system. Since tribunals are not required to adhere to any precedent-based standards, they are flexible, however certain tribunals may see rulings as more significant than others.

The next step is arbitration, which includes bringing in a neutral third party known as an arbitrator to determine the disagreement. The arbitrator must reach an agreement between the parties in accordance with the “judicial role” of resolving the parties’ disputes. The Arbitration Act of 1996 was modelled after the United Nations Commission on International Trade Law’s Model Arbitration Law (UNCITRAL). The legislation itself emphasises that the purpose of arbitration is to seek a cost-effective and acceptable outcome.

There are several reasons why Arbitration is used. Initially, arbitration is seen as a private process in which the public does not have access to any material that might impact either party or the arbitrator, so ensuring a safe and fair proceeding. In addition, because there are only three parties involved, the dispute is settled considerably more quickly than in formal legal processes. Since professional counsel is not required, business people are often in favour of the process. Consequently, the process of Arbitration is often less expensive. Premium Nafta Products vs Fili Shipping in 2007 UKHL 40. In instances like Premium NAFTA items v. Fili Shipping, 2007 The House of Lords said that if the parties are in a dispute that they believe may be handled via the Arbitration process, then it should be evident that they have chosen Arbitration due to its benefits over a formal court case. To create the distinction between conflicts that should be arbitrated and those that should not be arbitrated.

However, Arbitration is not always depicted favourably; it might be argued that since it is so private, the public is denied access to any information that may influence them. It has also been said that not all Arbitration cases are successful, and that if one party chooses to oppose the process’s result, it will be time-consuming and expensive for all parties, since legal counsel will be necessary. In Dunnett v. Railtrack plc (2002), the court ruled that Railtrack declined arbitration as a way of settling Dunnett’s issue, without taking into account the possible result. In accordance with rule 26.4 of the Civil Procedure Rules (CPR), Railtrack Ltd should incur additional expenses when the case is determined. This demonstrates that the courts take ADR proceedings seriously, and rulings such as Dunnett v. RailTrack demonstrate that the processes are enforceable and should be regarded as substantial conflict resolution methods. J. Colman said that the court “should not go out of its way to discover ambiguity… unenforceability in the sphere of ADR,” which might be interpreted as meaning that ADR reduces the court’s workload. In addition, it has been suggested that if Arbitration were not so heavily privatised, it would only be an adjudication system.

Mediation is an additional kind of alternative dispute resolution (ADR) that is performed globally, particularly in places such as Africa and Asia; it encompasses a broad variety of features including workplace, peer, and family mediation. Mediation, like Arbitration, requires asking a third party known as a mediator as a method of expression; however, it is less formal than Arbitration since the parties never have to meet because the mediator communicates each of their viewpoints between them. If the parties do agree to meet, then the mediator must be present. American authors describe mediation as “an informal procedure in which a neutral third party with no authority to enforce a decision assists conflicting parties in reaching a mutually agreeable settlement.” In 1998, a study done by the Department of the Lord Chancellor indicated that 62% of cases were successfully resolved via mediation without being sent to court, and that mediation was effective in dealing with the great majority of matters ranging from divorce to personal injury. The Family Law Act of 1996 has greatly increased the use of mediation, particularly in divorce cases. There are several reasons why mediation is used. First, it may be arranged in a couple of hours, hence reducing resource-related expenses. The average cost of mediation per party is £100, which is low compared to the hundreds of dollars spent for professional litigation. Moreover, litigation involves privacy concerns, while mediation is secret, and rather than having a “winning and a loser” as in court proceedings, there is a consensual agreement in which both parties gain. Mediation has resulted in a more efficient use of private and public conflict resolution resources; as a result, the public has come to embrace mediation as a dispute resolution process, implying that they would choose this method in their own problems. In the last three years, the usage of mediation in the United States has surged from ten percent to fifty percent. Despite the implementation of the voluntary mediation system in 1998, the settlement rate in the United Kingdom has not topped 50 percent since 1998. According to 2000 data, the settlement rate declined to 40 percent. In contrast, between July 1, 2008 and June 30, 2009, 174 mediation-related cases were recorded, of which 130 were resolved via mediation or an assigned judge. The 44 unsolved cases are awaiting resolution. There are further constraints to the mediation procedure. If both sides are unable to reach an agreement, the procedure will have been time-consuming and expensive. The Automatic Referral to Mediation (ARM) programme stated that if the dispute was not resolved, the expenses might increase by an average of £1000 to £2000. For the process to be kept confidential, a significant deal of faith and confidence must be put in both the mediator and the parties, since one may be seeking publicity to further their position. Lord Woolf’s ruling in Cowl v. Plymouth City Council indicates his notion that mediation is a useful means of settling conflicts, particularly those involving the general public.

“Had they been unable to do so without assistance, a neutral mediator would have been necessary. That would have been the most cost-effective option. Today, enough should be understood about ADR to make its non-adoption, especially where public funds are involved, inexcusable.”

In addition to mediation, Conciliation has been presented as an alternative technique of conflict resolution. It is an improvement on mediation in terms of the mediator/ability conciliator’s to offer and enforce the basis for a compromise. The Disability Conciliation service is almost comparable to mediation in that the parties meet face-to-face, but in ACAS conciliation, the conciliator often negotiates the parameters of the agreement with each party separately, frequently over the phone. Collective conciliation refers to discussions between two represented organisations, often unions and employers. ACAS is often called upon to offer conciliation services for situations of this kind. In 2002, the settlement rate data for the use of conciliation in conflicts were 81%, indicating a high success rate, which suggests that this kind of ADR has a positive impact on society.

Med-arb refers to the use of both Mediation and Arbitration; it does not combine the two into a single solution, but rather tries Mediation as a means of resolving any disputes regarding the issue at hand; if Mediation fails, Arbitration is then used to reach a legally binding agreement between the parties. This procedure might be offered as a means of persuasion to encourage parties to reach a settlement via mediation; otherwise, an arbitrator will make the decision for them.

Similarly, both arbitration and mediation include a third party. In adjudication, an adjudicator makes official judgements based on the written evidence and comments offered by both sides. Regarding the formal Courts, it is assumed that the adjudicator is the judge. Arbitration is often seen in trade-related disputes, such as consumer complaints. The characteristics of adjudication are comparable to those of mediation and arbitration, however the adjudicator is often an expert in the dispute’s subject matter.

Additionally, there is a form of Alternative Dispute Resolution that is used less often than those listed above.

Negotiation is the process by which two parties reach an agreement via the mediation of a third party known as the negotiator. It has been stated that negotiation occurs in all types of ADR since it is defined as the dialogue between parties that results in an effective settlement of their disagreement.

There are many less common techniques of alternative dispute resolution, such as those not included above. A mini trial allows the parties to present their case before a panel, often with the assistance of a mediator. The panel then negotiates a suitable conclusion based on the presentations. This procedure may be costly since the panel is required to have expertise and understanding of the dispute-causing factor. They may be a lengthy process and are deemed inappropriate for instances involving personal injury or modest claims. Additionally, they are hardly deemed legally binding. In addition, Expert Determination is a procedure that, like arbitration and mediation, includes a third party; however, the decision reached in this ADR is final and cannot be challenged, offering the parties closure and certainty. This is acceptable when an immediate remedy is required. Expert Determination is the shortest and least costly of the alternative dispute resolution systems, it has been noted. As with the majority of ADR proceedings, it is private and secret. In addition, the ombudsman process incorporates the advise of an Ombudsman, who provides the disputing parties with assistance in settling their dispute. After they have evaluated the allegations of both parties. In The European Community, there is evidence of the existence of an Ombudsman whose function is to examine instances of maladministration involving community-related concerns. Also The brochure “The Ombudsman in Your Files” was published by the Cabinet Office in 1995. It explains the purpose of an ombudsman, the duty of the parliamentary ombudsman, and what occurs if a complaint is filed. This method is considered an alternative to the Tribunal System. This has been considered an alternative to conventional court processes, and hence a sort of alternative dispute resolution.

Overall, the preceding data suggests that Alternative Dispute Resolution is supported and in some circumstances mandated by the courts. It is fair to claim that ADR has had a significant influence on the manner in which conflicts are handled.

In accordance with the Arbitration Act of 1996, the court’s function has diminished, and in forms such as arbitration, the arbitrator’s role has expanded, so achieving the primary objective of Alternative Dispute Resolution, which is to minimise the burden of the official formal courts. Indicating that it is advancing slowly through the English legal system.

In addition, the Law Society’s civil litigation committee and its ADR committee issued a report in April 2005 concluding that on the basis of Halsey v. Milton Keynes NHS Trust, LJ Dyson’s ratio decedendi suggests that Alternative Dispute Resolution is advancing in society’s efforts to resolve civil disputes.

“Nowadays, all members of the legal profession should frequently discuss with their clients whether their issues are amenable to ADR”

A examination of instances using mediation as a form of Alternative Dispute Resolution reveals an 83.5% success rate between 1993 and 2005, indicating that mediation may be accounted for as an effective method of settling disagreements. Therefore demonstrating that ADR is striving to be acknowledged by the court as a means of settling conflicts and by those who utilise it.

It is obvious that ADR has been more prevalent in recent years, resulting in advancements in the resolution of disputes among state persons and organisations. Gary Slapper and David Kelly argue that the 2005 case Burchell v. Bullard implies that ADR is superior to the courts for the resolution of civil disputes. “A modest building dispute is the kind of issue that, as determined by the recorder, lends itself particularly well to ADR.”