ADR in England and Wales - Essay Example

?There has been much contemporary change in the landscape of civil disputes from adjudication, as the norm, to ADR and the various processes of informal dispute resolution. Does this shift raise numerous difficult questions for the administration of civil justice in England and Wales, and if so, how have they been resolved? If not, how are they to be resolved? Critically discuss with relevant research. Introduction 1. What is ADR? ‘Alternative Dispute Resolution is an umbrella term which is generally applied to a range of techniques for resolving disputes other than by means of traditional court adjudication – for example mediation, early neutral evaluation, arbitration, neutral expert fact-finding, med-arb and mini-trials’. ? The current scenario pertaining to civil disputes has taken a shift from adjudication to ADR and many other procedures to resolve civil disputes in an informal way. This shift in focus is not only emerging in the UK but worldwide. It has been stated thus by Julie Macfarlane: ‘In the United States, a significant cultural change is taking place in legal practice as a result of the widespread introduction of court-connected and private ADR (Alternative Dispute Resolution) programmes, which aim to resolve litigation matters as early as 1possible by party agreement (Macfarlane, 1997; Sander, 2000)). The most complex and far-reaching of these changes is a challenge to the traditional model of the lawyer as a manager of war — the strategic and skilful facilitation of peace now appears to be equally important. The increasing acceptance of ADR processes within civil litigation has immediate practical consequences for legal practice.’ Certain businesses are more prone to this changeover such as large insurance companies undergoing litigation processes through traditional ways are exploring ways to reach early settlement of disputes through alternative means. The new methods of ‘case management’ adhere to given timelines for filing and submission of documents. Resolving disputes through ADR and other processes of mutual settlement follow an ‘upfront’ work method, creating the rank of specialist ‘settlement counsel’, the creation of ADR departments in big legal firms and the practice of ‘collaborative lawyering’ networks, for reaching settlements indicate how society and stakeholders have accepted ADR within civil litigation for faster way out without litigation process. Reforms have been initiated in court proceedings and in the private sector as well in the UK and the whole of Europe (CEDR, 2000)), the impact of which can be seen and felt by all stakeholders. ? 2. Tribunal Adjudication and Alternative Dispute Resolution Before starting an analysis of the new issues emerging from this shift in the provision of civil justice through alternative means in England and Wales, a thorough understanding of the related concepts of tribunal adjudication and alternative dispute resolution can help in enhancing _______________________ ?. University of London, p. 70. knowledge on the topic. There is nothing new in the English legal system employing specialist tribunals to resolve disputes over a vast panorama of issues historically. There has been an over-crowding of cases because of the making of new kinds of laws such as ‘social security law’ since World War II (1939–1945). At present, tribunals negotiate over a quarter of a million cases each year, which equals more than the total of all County Court and High Court cases. The role of Tribunals is, therefore, crucial in the English court system because of the quantity of cases handled by them. They also play a significant part for their unique processes and means of adjudication. These tribunals differ from traditional civil and criminal courts in their missions and aims. ? 3. The difference between courts and tribunals Difference between a ‘court’ and a ‘tribunal’ is that a tribunal is formed by Parliament in the same way a court hears specific grievances or particular issues of dispute. Normal disputes occur between individuals and a government undertaking, for example, a person claiming a social security benefit and the Department of Social Security not obliging the claim over it. These tribunals are called administrative tribunals, while various other tribunals are formed to award justice over disputes of a specialist type where the government is not generally a party, such as, industrial tribunals, which may decide on claims for ‘unfair dismissal’ of employees. ___________________________ ? University of London, p. 63. In Attorney-General v British Broadcasting Corporation [1980] 3 All ER 61, the House of Lords remarked that the important distinction between a tribunal and a court is that a tribunal does not administer any part of the ‘judicial power of the state’. The special jurisdiction of a tribunal is sanctioned by Parliament and it is not wide enough in general terms. The chairman of the relatively significant tribunals is normally a lawyer who functions with at the minimum two lay members (generally representing the types of stakeholder groups known to the parties and disputes normally presented before the tribunal. 4 The contemporary shift in the judicial scenario occurred on March 2003, with the government declaration that the past trend of 40 years would be replaced via a unified tribunals service represented by 10 tribunals covering five government departments under the aegis of the Lord Chancellor. The then Lord Chancellor, Lord Irvine, stated the shift would reform the ‘third great pillar’ of the justice system, resulting in changes to criminal and civil justice. The unified tribunal service will include fields of employment, pensions, immigration, criminal injuries compensation, mental health, social security benefits, tax and disability. The change over of reforms was advocated in a review of the system by Sir Andrew Leggatt, a senior judge to be followed by a White Paper on it in late 2003. The major product offering by the government after the shift in the provision of legal services, currently, has been the Community Legal Service (CLS) – binding sectors, services and funding through a thin thread. Potential in the mechanism and working of CLS can be measured by ___________________________ 4University of London, P. 63. selecting certain regions to know the role of these services in meeting the legal needs of the local people besides discussing the problems of widening gaps between the demand and supply of justice because of the under-nourished and divided CLS infrastructure, threatening the presence of CLS from the huge layer of unwanted bureaucracy. In the context of administering civil justice in the regions of England and Wales, the reports on the related CABx, the Legal Service Commission on the viability of related CLSs list a number of hurdles in the provision of justice in the area of unfulfilled advice needs and funding. The percentage of not available solicitors, as per the CAB survey, for dealing immigration cases is 68%, for family law cases 58%, for housing cases 60%, for employment cases 27% and not-availability of 10% for welfare benefit cases. Let’s take the geographic base of Wales. 5 4. Wales Wales in the context of CLS services is impressed rurally. Nonetheless, in some areas of law, the given facility is not developed such as in the matter of employment contracts, which were non-existent in Wales. Another area not fully developed is that of immigration; it is short in the supply of facilities in Cardiff. The LSC Wales’ Contracting Strategy states ‘’The Committee identifies as a high priority that the Commission takes the necessary steps to ensure that there are adequate numbers of contracted immigration suppliers to respond to any anticipated changes in the levels of demand. This is likely to involve increasing capacity in Wrexham and Swansea, and possibly Newport, and closely _________________________ 5 Geography of Advice, p. 3. monitoring capacity in Cardiff.” All over Wales, there are specific supply problems in housing, welfare benefits and debt advice. It was revealed in the CAB survey by 37% participant bureaux in Wales that it was an 'advice desert'; 48% reported problems in locating a CLS solicitor who can handle family law cases, 54% found problems in referring employment law cases and 63% faced hardships in referring to immigration cases. Solicitors, on the other hand, found it hard to cope up vast geographical regions with the present strength of centres in Wales. • Geographical coverage of Powys CAB is 2006.56 square miles whilst Gwynedd CAB covers an area of 984.44 sq. m. Both bureaux showed their anguish at the grant of funds not made as per the vast reaches of the regions, as per the contract and not including the time spent in travelling from the contracted work hours against rural bureaux which need to function in far-flung areas efficiently. The LSC for Wales finds limited reach to family lawyers in the Gwynedd region and a geographical gap in all contract divisions. 6 • The Ceredigion CLSP state that “there is evidence that certain sections of the rural population may have particular problems in accessing legal advice and information. This is in the main due to the nature of rural deprivation where low incomes may combine with geographical isolation and lack of regular access to facilities in larger settlement centres”. _____________________________ 6 Geography of Advice, p. 55. The CLSP has also pointed out the need of increased levels of advice in debt, housing and employment to service the leading towns of Aberystwyth, Cardigan and Lampeter. • In Aberystwyth and Brecon, there are no LSC supported mental health services and the Legal Services Regional Committee has found unfulfilled need for specialist solicitor in welfare benefits. The CAB also states the absence of specialist solicitor in Aberystwyth. • In Caerphilly there are no LSC granted housing suppliers. • In Pembrokeshire there are no carriers of LSC welfare benefits & debt advice contracts. • In Monmouthshire, particularly Abergavenny, there is deficiency in the provision of debt and welfare benefits advice; the LSC has outlined this as a top-priority need but has remarked that there is deficiency of funds also. • Flintshire CLSP state that those looking for legal advice in welfare benefits & debt issues can not have their turn before 14 days for advice from local bodies. • In Neath and Port Talbot, clients many-a-times have to wait 2-3 weeks for debt and benefits advice from LSC funded suppliers. 7 ________________________________ 7 Geography of Advice, p. 55-56 5. Greater London London has varied demand because of mixed-income households and polarisation due to 30% of working age people in poverty line. It is more true or minority ethnic people with half of the total ethnic population of Great Britain residing in the capital, causing inequality in the distribution of income, giving reason for strong ethnic aspects besides the regional aspects of poverty immensely felt in Inner London, populated by about 3 million residents, recording relatively increased rates of income poverty than any other area of Great Britain. Here, economy of advice offering is as varied as is the city; it is not an easy task to measure the availability of ‘service to need’. Nevertheless, sufficiency of advisory services is a specific issue with a number of outer London boroughs, generally rich but having some areas affected and unable to get needed funding for services. 8 In the Bristol region having a population of 380,000, both the CAB and Shelter state that there is a deficiency of housing law services and other specialist solicitors. Five years ago there were at the minimum six law firms doing uninterrupted practiced in housing law and other legal-help funded jobs. All of these firms added to a duty possession proceedings rota at the Bristol County Court. Five of these firms have ceased functioning for publicly funded work since the initiation of the Community Legal Service; only South West Law is currently servicing the entire region of _____________________________ 8 Geography of Advice, p. 28. Bristol. Advice undertakings are worried over the LSC’s Regional Directory failure to remain updated; the 2002 edition provides haphazard work, lacking systematic approach. In Birmingham, there is sufficient number of publicly funded legal services providers but issues exist in the non-availability of specialist contracts and legal aid in specific divisions. 9 Shirley CAB’s client faced hardships in the ongoing bankruptcy proceedings, as out of the six solicitor firms, no one came forward to offer advice on recovering money owed under contract. Burleigh CAB report non-availability of CLS housing solicitor in the town. The clients have to visit Walsall or Birmingham area for a housing solicitor. Walsall CAB report only one specialist family firm locally, and there are recurrent issues of locating lawyers by clients in dire need of them, even for clients from other boroughs. Dudley CAB report deficiency in the supply although it is the second biggest of the conurbation CLSPs in the area. Well-attended divisions in social welfare categories funded by the LSC are only welfare benefits and debt. The Immigration soliciting is performing below full capacity. The local MP Ross Cranston QC rightly remarks that amidst all the innovations of the CLS ‘’big gaps _______________________ 9 lbid, p. 39. remain in the extent to which legal advice and help are available in Dudley…we have a real gap in respect of employment law, for which there are no specific legal assistance suppliers. Some provision is made in respect of housing, but it is clearly insufficient…the local CAB provides advice on debt…but it is operating at near full capacity. Stratford upon Avon CAB has no LSC contract; problems surface each weak in making referrals for immigration cases 20 miles away, housing cases -- 20 miles to the nearest provider and employment cases at a distance of 40 miles. There are no typecast contracts in Stratford, which puts a question mark on its ability to fulfill demand in some of the social welfare law sections. It is arduous task reaching Coventry as the sub regional centre for Stratford for many clients because of hardly any public transport outside Stratford. In Banbury, there is only one CLS firm causing discomfort each weak in making referrals. In Studley there is presently no supply of CLS services of any type. In Warwick also, it is the same situation; there are no division specific LSC contracts. 10 The Leicester CLSP is deficient in providing access to employment advice, which has affected more on black and minority ethnic communities than on the overall population. In Leicestershire, the county council’s welfare rights service is presently limited to social services clients and there are no other specialist _______________________ 10 lbid, p. 43. is presently limited to social services clients and there are no other specialist welfare rights services to function as spokesperson at appeal tribunals. Leicestershire CLSP has located the need for better availability of advice services on housing, debt, welfare rights and employment. 11 In Lancashire and Greater Manchester, it is not much dissimilar to the divisions stated above. In Bolton, there were intermittent issues in making suitable referrals to housing and family lawyers. Central and South Lancashire, Stockport, Tameside and Trafford CLSPs faced same leading gaps in housing provision at different levels. Both at Warrington and Wigan, populations have just one CLS firm doing housing work. Oldham, Macclesfield, Tameside – problems in all regions were near about similar in the matter of housing, particularly related to deficiency in funding on specialist housing advice. In Oldham, people wanted housing advice services in Punjabi, Urdu, Bangla and Gujarati. 12 There cannot be any doubt that the British Parliament’s initiative of providing alternate justice system is grappling with innumerable questions, as we see from the above analysis _______________________ 11 lbid, p. 45. 12 lbid, p. 53. of England and Wales regions. Issues have yet to be resolved. The future of CLS seems to be heading towards a disastrous scenario where publicly funded legal services are shrinking. Firms’ strength is reducing to do work for legally aided clients. Responsibility of managing information is so immense that firms are not keen to continue with their contracts. They are renewing contracts offering only half the time of the legal advice provided in the past contracts. Although government ministers and the Legal Services Commission have expressed no such fear of looming crisis but off late, the provider organizations have raised their concern over continuing with the present contracting system. 6. How are Issues to be Resolved? Various problems faced in delivering CLS need to be tackled by working on major themes, as stated in different CAB reports. It needs to be acknowledged that the approach to both funding and contracting of services and the management of the CLS, makes provision of the services very complicated matter not to be resolved easily. Rethinking needs to be made over strategy mechanisms, whether they are truly representing local aspirations to start with a balanced approach between general and specialist help. The collaboration at various levels is changing in quality and outcome. It is not fully mature infrastructure for providing advice at local level. The interest groups are not getting optimum leverage. 13 In the matter of Funding and contracting of services, the present limitations on employing contract time for redress of problems needs to be get away. For example, on assisting clients ___________________ 13 lbid, p. 58 submitting welfare benefit claims to save appeals afterwards and using the contract time for social policy proof collection. Further, there should up-rating of funding as per the yearly retail price index. CLS needs to create more suitable and answering way of locating needs at local platform. Possibility of working together needs to be rechanneled. CLSPs should adhere to minimum standards of practice regarding their structure; there should be sufficient and regular funding for CLSP support, to be provided by independent secretariats. Further, the role of local authority in CLSPs needs to be promoted. As a catalyst of attaining this, thought should be spared on building more participative local authority for their CLSP infrastructure a Best Value variable. 14 Referral protocols also need to be agreed upon to and from ADR services, especially finding the suitability of referring issues for either mandatory or voluntary referral. 15 Providing unsuitable dispute resolution services can affect the process and can result in loss of expertise value. From supply side perspective, it is crucial to control referral losses. Some lost users might locate resolution of their disputes with different ADR provider as well. Losses in funding need to be minimised to achieve expenditure efficiency. Therefore, issues related to referrals need to be tackled separately for fixing quality benchmarks. _______________________________ 14 lbid, p. 62 15 Field, p. 79. Bibliography Field, Prof. Chris, ‘Alternative Dispute Resolution in Victoria: Supply-Side Research Project’(Research Report, 26 Feb. 2007) accessed 20 December 2011 ‘Geography of Advice’ (Feb. 2004) < www.citizensadvice.org.uk/macnn/geogofadvicefeb04.doc> accessed 20 December 2011 Hazel-Glenn, Paths to Justice: What People do and think about going to Law. Oxford: Hart Publishing University of London, Chapter 3: The Role of Courts and Other Decision-making Bodies. 2007. accessed 20 December 2011 Read More