bAssignment

a) Alternative Dispute Resolution (ADR) is the name given to the process

where parties in a dispute come to a compromise (or settle their dispute)
without going to court. The main reason people use ADR is to save the
expense of using the courts and solicitors. There are four types of ADR
mediation, negotiation, conciliation and arbitration.

Intro:

Negotiation is the simplest form of ADR. Where two people have a dispute they can negotiate
a solution themselves. The advantages to the parties involved are that it is completely private and
it's fast and cheap. This is where parties to a dispute cannot settle it themselves they may instruct
solicitors who will negotiate on their behalf. Even when negotiation fails at these early stages of
a dispute and court proceedings start, solicitors will usually continue to negotiate on their client's
behalf. This results in many cases being settled out of court.

Mediation is where a neutral person (the mediator) helps the parties to reach a compromise.
The job of the mediator is to consult with each party and see how much common ground there is
between them. S/he should act as a facilitator, taking offers between the parties. The mediator
doesn't offer an opinion. Mediation is most suitable where there is some chance that the parties
will co-operate. such a in family disputes. Mediation is not legally binding on the parties.

Conciliation is similar to mediation where a neutral third party helps the parties to resolve
their dispute; however, the conciliator plays a more active role in the process. S/he will be
expected to suggest ways in which a compromise could be reached. Conciliation is not legally
binding on the parties.
Arbitration is the most formal of the methods used to settle disputes without using the courts.
Arbitration is where the parties with a disagreement pass their dispute to a third party,
who will make a judgment on their behalf. This judgment is legally binding on the parties.
The relevant law on arbitration can be found in the Arbitration Act 1996.

The agreement to go to arbitration can be made by the parties at any time. It can be written into a
business contract by what is called a Scott v Avery clause or the parties may just agree on
arbitration when a dispute arises. The parties can agree the number of arbitrators who will hear
their dispute. It could be three, two or just one person. The parties will normally appoint
someone who is an expert in their particular area of business. There is also the Institute of
Arbitrators who will provide trained arbitrators to parties who wish to settle a dispute.

The actual procedure to be followed in any arbitration hearing is left to the parties to
decide. Therefore, arbitration hearings can take many forms. The parties can decide on a
paper arbitration, which means the parties submit everything to the arbitrator in writing, which
will then read everything and make a decision. However the parties can also have a hearing at
which they appear and give evidence and witnesses may be called. The decision made by the
arbitrator is called an award and is legally binding on the parties.

The advantages of ADR is Speed as settling a dispute using ADR is usually much quicker than
using the court system

Expertise as a specialist from within a particular trade or industry is able to suggest a reasonable
solution which will be acceptable to the parties involved. A judge is unlikely(doubtfull) to have
specialist knowledge, other than in the law.

Privacy as ADR is conducted in private, therefore avoiding publicity from the media. The public
are also unable to attend it. This will be good for companies as cases may discredit their business

Parties may be able to remain on good terms as the aim of ADR is to find a compromise solution
which is acceptable to both parties. Court proceedings create a winner and a loser. Using ADR
to settle a dispute means businesses can remain on good terms and continue to trade with each
other once their dispute is resolved.

Costs to the Parties as all forms of ADR are cheaper than taking a case to court.

Costs to the State as very case resolved using ADR saves the Government money.

Saving of Court Time - Every case solved through ADR stops the courts being over burdened
with case.
However there has been a consistent lack of demand for ADR when when it is provided at very
low cost. The volume of mediation is low as there has been resistance to the idea of mediation.
The desire for vindication and public acknowledgement of a wrong suffered can be very strong.
The settlement rates of cases going for mediation have also dropped dramatically. This could be
due to half hearted attempts to comply with mediation for fear of being judged unreasonably for
not considering mediation.

To increase the demand for ADR new rules under the Legal Aid scheme stated that an
application for legal aid for representation may be refused if there are ADR options which ought
to be tried first. The government has also stated that it would attempt to resolve all disputes
involving government departments through ADR wherever possible.

b) Lord Woolf, assess to justice (final report, July 19696), identified a number of principles
which the justice system should meet in order to ensure assess to justice. The system be just in
results it delivers; be fair in the way it treats litigants; offer appropriate procedures at reasonable

costs ; deal with case at responsible speed ; be understandable to those who use it ; be responsive
to the needs of who used it; provide as much certainty as the nature of the particular case allows
and be effective; adequately resourced and organised.

The problems three main problem that were in the justice system was that that the cost were too
expensive as often the costs exceeded the value of the claim .The dealy that there was to bringing
a case to a conclusion and the complexity of the cases

Judicial Case Management (JCM) was one of the most significant of the reforms. The
involvement of the courts in the active management of litigation away from the lawyers was
designed to bring cases to trial quickly and efficiently by adhering to strict timetables. JCM also
introduced the principle of proportionality where the financial and time resources of the courts
are applied appropriately according to the small claims track, fast track or multi track depending
on the financial value of the claim.

It also introduced a new principle: proportionality. Not only should the time and money spent on
a case reflect what was being litigated over, the resources of the courts should also be applied
appropriately, taking into account other calls on the courts' limited time and assets.

Zander's criticisms of the reforms however focused on the fact that they concentrated on the
lawyers and courts when the real problem was with the litigious and compensation seeking
culture of the English public. The problem with costs will also not go away as there will be front
loading of fees by the lawyers and this may even act as a deterrent as litigants will need to come
up with the money at a very early stage. There is still no sizeable decrease in delay as the courts
are still under resourced in terms of manpower and technology.
Lawyer's work actually increases as a result of having to respond to the court's management
directions and tended to increase rather than reduce costs. Multi track cases with two pre trial
hearings will generate even more additional costs and this is reflected in front loading of costs
which do not solve the problem of expensive litigation.

Pre Action Protocols were also proposed where there was a strict timetable for the exchange of
documents and claims and encouragement of a culture of openness between the parties by having
earlier and fuller exchange of information to facilitate pre-action investigation and to encourage
early settlement. However pre action protocols have also resulted in the front loading of costs.
Some complex cases involve lengthy pre-action stages

In factually complex cases, the pre-action stage can be very time consuming and be extremely
costly, there is a potential recoverability of elements of pre-action costs if there are claims that
are not subsequently pursued in the proceedings. This may deter litigants from doing all they can
at the pre-action stage and may simply comply with the requirements of the Pre-Action Protocol
by indulging in formalities only

To tackle the root of the problem we would have to look into alternative ways to settle disputes
rather than depending solely on adversarial trials. It would appear that the adversarial system
goes against achieving the objectives of the civil justice system which was to provide for
processes that were just, accessible, efficient, timely and effective. The motivation for having
such a platform is clear enough: to encourage people to conduct their daily affairs with the
knowledge that they would have recourse to the law

Under this system, the lawyers dictate the intention of the parties resulting in a boxing ring
culture rather than a solution seeking culture. The courts act as umpire taking hands off approach
in the matter of hand so long as the complex boxing ring procedures are followed. The complex
procedures involved meant time and costs which are unsustainable to private individuals and
small companies which meant that the Rule of Law is unfavorably balanced on the side of the
party with expenses to worry about

The reforms were implemented in the Civil Procedure Rules implemented in April 1999 and the
courts were given power to order parties to attempt mediation failing which the courts could
impose cost penalties or cost sanctions on the winning party. This was put into practice in cases
such as Dunnet v Railtrack plc where it was stated that if a party rejected ADR out of hand, they
would suffer the consequences of a discretionary order. In Halsey v Milton Keynes General NHS
Trust it was added that members of the legal profession should routinely consider with their
clients whether their disputes are suitable for ADR.
Moving towards a more inquisitorial system in which the judge would take a more investigative
role and the two parties would be required t cooperate by revealing all the evidence to each other.
Reducing the time and costs factor by cutting down on the number of cases that eventually go to
court with greater use and legitimacy of the ADR process. This would mean making it
compulsory for selected cases to solve their disputes via this route.

(Summary: an accurate outline of forms of ADR and discussion of their advantages and disadvantages;
followed by an effective consideration of the Woolf reforms to civil courts.
Rating: *****)