Alternative Dispute Resolution and the English Civil Justice System - Essay Example

?The Role that Alternative Dispute Resolution Plays in the English Civil Justice System Introduction Beginning in the 1980s a number of common law jurisdictions came to the conclusion that their respective civil justice systems were undermined by excessive cost, delay and procedural complexities and as a result unavailable to the ordinary citizen.1 Civil justice reform in England and Wales necessarily honed in on addressing the cost, delays and procedural complexities of civil litigation and thus making civil justice more readily available to ordinary citizens.2 Much of the reform in the English civil justice system follows from Lord Woolf’s Interim and Final Reports3 forming the basis of the Civil Procedure Rules 1998 which took effect in 1999.4 The resulting civil justice reforms envisioned by Lord Woolf and the Civil Procedure Rules 1998 are decidedly aimed at facilitating a civil justice process that delivers fair and just results, treats disputants fairly, provides affordable processes, is relatively fasters, can be understood by disputants, is certain and effective.5 This research study critically analyses the role that alternative dispute resolution plays in accomplishing and facilitating the aims of fairness, reduction of delays and cost, finality/certainty and procedural simplicity for disputants in the English civil justice system. Cumulatively, the main question is whether or not the aims of civil justice report facilitate greater access to justice for disputants via alternative dispute resolution. This study is therefore divided into two parts. The first part of this study analyses alternative dispute resolution and the second part of the paper analyses the extent to which alternative dispute resolution is facilitated by the English civil justice system. Alternative Dispute Resolution Alternative dispute resolution broadly defined implies the use of non-traditional court adjudication of disputes. Invariably this means the use of mediation, conciliation or arbitration as opposed to formal litigation.6 However, the term alternative dispute resolution received academic attention beginning in the 1980s and was used as a frame of reference to an option for resolving civil disputes in the absence of lawyers or legal input. By the end of the decade of the 1980s alternative dispute resolution institutions began to form and gain currency in the UK. By the 1990s, alternative dispute resolution was perceived as an important solution to the evolving litigious culture which created delays, inordinate costs and created a significant problem for ordinary citizens to gain access to civil litigation.7 According to Stipanowich over the last two or more decades, there has been a consistent effort on the part of lawyers, the judiciary, business entities and governments to cooperate on the formation of strategies and policies calculated to provide for the more efficient and less costly management and resolution of conflicts which invariably includes ADR processes.8 Arbitration is often described as an informal and rather simple version of adjudication via the courts in which the formal requirements relative to procedural laws such as discovery are typically waived and instead adopt a more informal process.9 Arbitration derives its strength from the disputant’s agreement to submit to arbitration and to abide by any award administered by the arbitrator who is usually a tribunal of three independent decision-makers or a single arbitrator.10 It would therefore appear that arbitration, is poised to forego or at the very least reduce the cost and time involved in litigation by removing the procedural complexities and guidelines established for civil litigation and thereby dispensing with the need for the involvement of lawyers. In this regard, arbitration as an alternative dispute resolution, with its emphasis on party autonomy arguably plays a significant role in the reduction of time and cost involved in resolving civil disputes and therefore contributes to facilitating the drive for broadening access to civil justice in the civil justice system of England. Mediation, like arbitration also involves an independent third party. However, what distinguishes mediators from arbitrators is the decision-making authority. Mediators, unlike arbitrators do not resolve the dispute between the disputants, but instead, make an attempt to guide the disputants toward an agreement as to the issues between them as a compliment to formal litigation or to an agreement for resolving the issues once and for all.11 Although mediation as an alternative dispute resolution process has an important time saving function in the English civil justice system, it is not as final or certain as arbitration which involves the issuing of an enforceable award by the arbitrator or tribunal.12 Conciliation is much the same as the mediation process.13 In this regard, conciliation and mediation may assist in the reduction of cost and time in the civil justice system in that it encourages the parties to a dispute to come together and either narrow the issues between them or to arrive at an agreement for resolving the dispute altogether. Either way, time and cost are saved as a number of issues will be spared formal adjudication and the formalities that involve time and money. Alternatively, mediation or conciliation can resolve the issues altogether, sparing the disputants the necessity of formal litigation altogether. Compared to arbitration, the negotiation of an outcome involved in mediation and conciliation is not as binding on the parties. Essentially, a negotiated outcome is not automatically enforceable and thus the role of mediation and conciliation as forms of alternative dispute resolution is not altogether as substantial as arbitration. Arbitration plays a more formidable and assertive role in the English civil justice system because it is accompanied by international conventions for the universal recognition and enforcement of arbitral awards, something that even national courts do not always have the benefit of. Thus arbitration has a significant role to play in the English civil justice system by providing for an enforceable and binding outcome.14 Larry argues that conciliation and mediation as alternative dispute resolution processes do not have the enforceability necessary for playing a significant role in the reduction of time and cost in the civil justice system in matters that are the subject of intense disagreement and dispute.15 Doyle argues however, that mediation and conciliation can play an important role in the civil justice process as they can both result in a contractually negotiated agreement. While the negotiation itself may not bind the parties, any negotiated agreement however, will have the force of a contract and as such will be binding on the parties to the contract.16 Be that as it may, any negotiated contract can only be enforced by the court or an adversarial process such as arbitration. Therefore unless the parties agree to arbitration, a negotiated outcome in mediation or conciliation must invariably involve formal litigation. Unless the parties comply with the negotiated outcome outright, the value and role of mediation and conciliation in reducing the cost and time involved in civil litigation are limited unless the parties actually comply with the terms and conditions of the negotiated outcome. It is therefore hardly surprising that the vice chancellor stated in Thakrar v Ciro Citterio Menswear plc (in administration) that when disputants come to an agreement under mediation, the agreement should be legally binding to such an extent that it should be enforceable through the courts without the need for litigation as one would a breach of contract action.17 Regardless, the primary benefit of arbitration and mediation/ conciliation as forms of alternative dispute resolution is the removal or reduction of the costs associated with formal litigation and lawyers’ fees and the time involved in litigating in courts inundated with a number of suits and as a result overbooked dockets.18 In the final analysis, the role of alternative dispute resolution in the English civil justice system is largely believed to be for the provision of access to justice for those who would otherwise be excluded as a result of cost and time involved in formal litigation processes.43 Arguably, alternative dispute resolution, particularly arbitration can be just as expensive and prolonged as formal litigation with the globalized trend toward the adoption of adversarial arbitration processes.58 Even so, party autonomy, a key element of alternative dispute resolution and arbitration in particular permits the parties to remove the formalities associated with the adversarial process. It therefore follows that arbitration as an alternative dispute resolution process provides disputants with the authority to agree to a process that is less adversarial and thus less formal than the litigation process and therefore plays a significant role in the English civil justice system in that it can reduce court and attorney fees and ensure that a greater portion of the general population has access to justice. It is entirely up to the disputants whether or not they wish to reduce costs and time and this will determine the extent to which arbitration as an alternative dispute resolution process works to ensure that cost and time are saved compared to formal litigation. The Legal Framework for Alternative Dispute Resolution The two primary statutory frameworks for using alternative dispute resolution in England are the Arbitration Act 1996 and the Civil Procedure Rules 1998.19 A legal culture policy has emerged that takes the position that formal adjudication of disputes should be the last resort for disputants whenever it is possible to resolve disputes by alternative means.20 In other words, a legal culture has evolved in the English civil justice system that seeks to close the doors to litigation by virtue of a determined effort to resolve all disputes that can possible be resolved outside of the court room. This legal culture captures the essence of alternative dispute resolution: the resolution of disputes without having recourse to the courts. The underlying rationale is that the courts’ dockets will be freed, cost and time will be saved and more people with entirely large and litigious issues will have greater access to the courts as time and cost will not be an issue. The current legal framework for alternative dispute resolution reflects Lord Woolf’s identification of cost, delay and uncertainty/unpredictability as the bane of the English civil justice system.21 According to Lord Woolf, alternative dispute resolution provided disputants with viable options with the result that formal adjudication could become more efficient and therefore more available. In this regard, Lord Woolf promoted the idea that alternative dispute resolution was a method for rendering the existing English civil justice system fairer, more practical, more comprehensible and more appropriate and efficient in terms of responding to the vast array of potential litigants.22 The Civil Procedure Rules 1998 arguably reflects the vision of Lord Woolf.23 The primary purpose of the Civil Procedure Code 1998 is to ensure that the English courts are put in a position to deal with disputes that come before it in a more judicious and fair manner and thus to reduce the burden on the courts that transfers over to litigants in terms of cost and delays with the result that many are driven from the judgment seat.24 This is facilitated by virtue of Rule 1.4 of the Civil Procedure Rules 1998. Rule 1.4 essentially instructs English courts to encourage disputants to avail themselves of alternative dispute resolution processes in cases where the courts are satisfied that alternative dispute resolution is entirely appropriate.25 Moreover, Rule 26.4(1) of the Civil Procedure Rules 1998 provides that English courts may at the stage where allocation takes place, whether at the behest of the disputants or the court, put the proceedings on hold so the disputants may consider using alternative dispute resolution.26 In this regard, the Civil Procedure Rules 1998 imposes upon the English judiciary an active duty to put alternative dispute resolution on the table for litigants in cases that can be properly resolved outside of the civil litigation process.27 It can therefore be argued that the legal framework for alternative dispute resolution as encapsulated under the Civil Procedure Rules 1998 is such that it provides alternative dispute resolution with a case management role in the English civil justice system. Arguably, the requirement that judges must encourage disputants to undertake or at the very least consider alternative dispute resolution in appropriate cases, provides judges with greater flexibility in terms of clearing docket space. While it can be argued that the Civil Procedure Rules 1998 does not provide judges with the authority to compel litigants to use alternative dispute resolution, it is also equally true that litigants are more likely to take their cues from presiding judges and comply with a request and will more likely than not, choose alternative dispute resolution if they feel it is the presiding judge’s wish.28 Fortifying the reliance on alternative dispute resolution, the Civil Procedure Rules 1998 is supplemented by Practice Direction 29.29 Practice Direction 29 PD 4.10(9) directs English Courts to provide instructions that require disputants to take into consideration alternative dispute resolution in appropriate cases. Where parties take the position that alternative dispute resolution is not appropriate and the court thinks otherwise, the court is at liberty to condemn the parties in terms of cost at the end of the trial.30 All indications are therefore that from the perspective of the legal environment facilitating alternative dispute resolution, the process is perceived to have a significant role in the reduction of case loads, the improvement of the quality of litigation by the reduction of delays. A necessary windfall for potential litigants is the reduction in costs and with the reduction in costs is greater access to the justice system for litigants with disputes that are impossible to resolve by virtue of agreement or via alternative dispute resolution processes generally. Conclusion Lord Woolf’s reports and the resulting Civil Procedure Rules indicate that alternative dispute resolution has an important role to play in case management under the English civil justice system. It is obvious that the cost of formal litigation and the inordinate delays have been a major concern for adjudicators and academics alike in England and Wales.31 There is an underlying rationale, that where cases can be properly resolves without having to resort to formal litigation, those cases should be resolved so that courts are free to manage their case loads more effectively and efficiently, therefore by improving quality, cutting costs and reducing the time involved in litigation. In this regard, the primary role of alternative dispute resolution in the civil justice system in England is to safeguard against over litigation, overburdened courts and thus the provision of greater access to justice by litigants who would otherwise be forced from the judgement seat as a result of excessive costs and delays that are typically associated with formal litigation. Bibliography Textbooks Andrews, N. The Three Paths of Justice: Court Proceedings, Arbitration, and Mediation in England. (London, UK: Springer, 2012). Doyle, M. Advising on ADR: the Essential Guide to Appropriate Dispute Resolution. (London, UK: Advice Service Alliance, 2000). Dunlop, J. and Zack, A. Mediation and Arbitration of Employment Disputes. (San Francisco, California: Jossey-Bass, 1st Edition, 1997). Harris, P. An Introduction to Law. (Cambridge, UK: Cambridge University Press, 2007). Larry, E. (ed). Domke on Commercial Arbitration. (3rd edn St. Paul, MN: Thomson, 2003). Lew, Julian; Mistelis, Loukas and Kroell, Stefan. Comparative International Commercial Arbitration. (The Netherlands: Kluwer Law International,2003). Loughlin, P. and Gerlis, S. M. Civil Procedure. (London, UK: Cavendish Publishing Limited, 2004). Rhode, D. Access to Justice. (Oxford, UK: Oxford University Press, 2004). Van Rhee, C. H. European Traditions in Civil Procedure. (Oxford, UK: Intersentia Antwerpen, 2005). Zuckerman, A.; Chiarloni, S. and Gottwald, P. Civil Justice in Crisis: Comparative Perspectives of Civil Procedure. (Oxford, UK: Oxford University Press, 1999). Articles/Journals Emilia, O. 'Empirically Determined Factors in Appointing Arbitrators in International Commercial Arbitration'. (2007) 73(2) Arbitration: the Journal of the Chartered Institute of Arbitrators,199-207. Hazard, Jr., G. C. ‘Two Valuable Treatises on Civil Procedure.’ (2005) 37 International Law and Politics, 611-623. Hazard, G. C. and Dondi, A. ‘Responsibilities of Judges and Advocates in Civil and Common Law: Some Lingering Misconceptions Concerning Civil Lawsuits,’ (2006) 39 Cornell International Law Journal, 59-70. McEwen, C. and Maimon, R. ‘Arbitration and Mediation as Alternatives to Court.’ (2005) 10(4) Policy Studies Journal, 712-726. Mistelis, Loukas. ‘ADR in England and Wales: A Successful Case of Public Private Partnership.’ (2003) 6(3) Art. 6 ADR Bulletin, 53-58. Moore, C. and Kemp, N. ‘The Mediation Process: Practical Strategies for Resolving Conflict.’ (2007) 18(1) R and D Management, 79. Pankaj, G. 'Semiglobalization and International Business Strategy'. (2004) 34(2) Journal of International Business Studies, 138-152. Park, W. ‘Arbitration of International Contract Disputes.’ (1994) 39 The Business Lawyer. 1782-1798. Sackville, Justice Ronald. ‘Reforming the Civil Justice System: The Case for a Considered Approach.’ In Stacy, H. and Lavarch, M. (Eds.) Beyond the Adversarial System. (Annandale, NSW: The Federation Press, 1999) 34-67. Schreuer, C. 'Investment Arbitration: a Voyage of Discovery A Paper Presented at the SJ Berwin International Arbitration Launch, London, November 4, 2004'. (2005) 71(1) Arbitration: the Journal of the Chartered Institute of Arbitrators, 73-77. Stipanowich. ‘ADR and the “Vanishing Trial”: The Growth and Impact of “Alternative Dispute Resolution.”’ (2004) 1(3) Journal of Empirical Legal Studies, 843-912. Vorrasi, K. W. ‘England’s Reform to Alleviate the Problems of Civil Process: A Comparison of Judicial Case Management in England and the United States.’ (2004) 30(2) Journal of Legislation,361-387. Wolski, B. ‘Reform of the Civil Justice System Two Decades Past – Implications for the Legal Profession and for Law Teachers.’ (2009) 21(3)Art.8. Bond Law Review, 192-232. Cases Cowl v Plymouth City Council [2001] EWCA Civ 1935. Thakrar v Ciro Citterio Menswear plc (in administration) [2002] EWHC 1975. Statutes Arbitration Act 1996. Civil Procedure Rules 1998. Practice Direction 29. Official Papers and Reports Law Reform Commission, Report: Alternative Dispute Resolution: Mediation and Conciliation, LCR 98-2010. Lord Woolf, Access to Justice: Interim Report, (London, UK: The Stationary Office, 1995). Lord Woolf, Access to Justice: Final Report, (London, UK: The Stationary Office, 1996). Yakovlev, V. ‘Why Judges Must Help Parties to Achieve Prompt Settlement of Disputes?’ (15 March 2004). Council of Europe, 1st European Conference of Judges, ‘Early Settlement of Disputes and the Role of Judges,’ Strasbourg, Conf/Juges (2003) Proceedings, 29-33. Read More