The Attitude of the Courts to the Settlement of Disputes - Essay Example

?Judicial Decisions The large numbers of those systems that have been developed for the purpose of settling disputes have been found to be unlimited and this is because of the fact that each dispute has the potential of being settled using different approaches. The decision of how to deal with disputes can be determined by the nature of the said disputes, the temperaments of the parties involved in the dispute, the cost of solving it as well as the significance of the dispute to each of the parties that have an interest in it. While this is the case, the alternative means of settling disputes can be classified into the most commonly used techniques and these tend to be highly reflective of the role of the independent third party. The said third party, in contrast to a judge in a court case, is often involved in the settling of disputes so that they can provide direction to the parties involved so that they are able to find suitable and satisfactory solutions to their disputes. When using alternative means of dispute resolution, the parties involved have much superior control over what they would like to gain from the resolution of the dispute and this control tends to depend on the procedure used in the arbitration. The settlement of disputes through the mediation that takes place between parties is has been found to be the best way to deal with many issues and it is only when intercessions do not work that some other means of reaching a settlement can be considered. It has been found that negotiations are often the best starting point for any form of dispute resolution and while the use of alternative dispute resolution is among the most reasonable means of settling court disputes, it can be said that it is not a requirement for the parties involved to be forced onto the negotiation table.1 An example of this is The Halsey Case of 2004 where a claim was brought by one Lillian Halsey, after her spouse died at Milton Keynes General Hospital as a result of an accident where as he was being fed through a nasal drip, the liquid food accidentally entered his lungs, causing his instant death. The disagreement that arose in this case was based on whether or not the inattention of the caregivers at the hospital was what caused the death of Bert Halsey, and when a post-mortem was conducted, its results were not conclusive since there was a disagreement between the practitioners who conducted the post-mortem over what caused the patient’s death. The lawyers representing Mrs Halsey wanted bereavement damages for their client, and wished to resolve the matter through mediation but this request was refused, since the accused party did not accept any liability, and therefore mediation would be out of place. In mediation, the parties select an independent third party, who will assist the parties to reach an acceptable solution and it is a requirement that the mediator should be an imaginative problem solver and be very much involved in the process of reaching a solution. The mediator will discuss the problem with the parties both together and separately in sessions that are known as `caucuses' and since these discussions are held in private, they should be frank and open, and the mediator will work towards persuading the parties to focus on their underlying interests and priorities.2 The role of the mediator should not be to be there to make judgments but to guide the parties to an acceptable solution and this requires that the mediator take on the role of an honest broker not that of a judge.3 There are times, however, when mediations may end up failing and the mediator, as a neutral party in the negotiations, may be called upon be the court to give evidence. The Farm Assist case of 2009 is a case in point of such a situation since the court involved denied the application by the arbitrator to reject a summons that required her to provide verification concerning the attempt at conciliation that she had undertaken between the aggrieved parties. The court made the declaration that discretion in all matters of arbitration belonged to the parties, and that these parties had the power to open up the discussions held during the mediation to examination even where the said mediators had agreed to keep it private. The Earl of Malmesbury case of 2008 is a further example of a situation where it is up to the parties and not the mediator to choose to waive the confidentiality of the negotiations especially in cases where there is unreasonable behaviour by the parties during the negotiations.4 Most of the most significant literature on alternative dispute resolution identifies five major outcomes from it and these have come to include among others, bigger settlements; an improvement in the satisfaction with the outcome or manner in which the matter in disagreement is determined among the parties involved; reduced time in dispute; the reduction of costs when settling the dispute; and finally, an increase in the levels of conformity with agreed solutions.5 Among those directly involved in matters concerning alternative dispute resolution, there is a general agreement that the resolution of disputes through the set mechanisms can be beneficial, but while this is the case, there are some significant variations among them concerning the extent and nature of those benefits for the parties involved in the dispute. Those who have made alternative dispute resolution their business are among the most enthusiastic about the gains of this type of settlement and it is a fact that advocates and their clients tend to be more qualified when one considers the real gains that are linked with this system of dispute resolution.6 There are certain cases, such as the Burchell v Bullard case of 2005, where the refusal to mediate can be justified, and in this case, the dispute was between a builder, Mr Burchell, and a couple for whom he was supposed to have build an extra room for in their house. The builder claimed ?18,000 from the Bullards, the aggrieved couple, which they declined to give because they were discontented with the value of the builder’s work and this resulted in a claim, in response of over ?100,000 from the latter. The judge found the latter claim to be greatly exaggerated, since it was eventually judged to be worth around ?14,000, so less than ?5,000 changed hands at the end of the five-day hearing, with the costs of the case being over ?160,000. The appeal, which was made had a focus on who should be responsible for paying the costs of the case and it is a fact that when the dispute first came into being. The builder had made the suggestion that the use of arbitration was the best way to resolve the dispute, but the aggrieved party refused, based on the belief that the case was far too complex for any sort of mediation to make an amicable resolution.7  Before the issuance of proceedings, it is a requirement that the parties act in a reasonable manner when exchanging documents and information in an attempt to settle dispute without having recourse to litigation. Sanctions are usually imposed against a party that fails to comply with stipulated requirements, for instance, one party may be ordered to pay costs to the other party when it fails to act in a responsible manner. Moreover, there are certain procedures that are conducted before any action is taken, which are a set of procedures that are to be followed in certain categories of dispute resolution, these include professional negligence. Exceptions to the costs incurred in sanction rules may take place if one of the parties offers mediation and the other party refuses the mediation, the party that refuses the mediation has to have sufficient reasons for neglecting mediation in order to avoid penalised costs. Even though it is not necessary to carry out mediation, dispute resolution will be at the heart of the justice system, therefore, when one of the parties refuses resolutions made; there will be the probability of having adverse cost consequences.8 One of the parties can refuse mediation when its objectives have no reasonable prospects of success, however, refusal of mediation possess as a high-risk course taken because the court can find real prospect in the mediation making the party that refuses to mediate be penalised.9 In such a case, the defendant reasoned that the claimant’s character and attitude gives the view that mediation had no prospect in getting anywhere; this is evident in the Hurst v Leeming case of 2001. A court can ask a defendant reasons behind refusal to contemplate ADR and if the defendant says he tried to avoid payment of money, which he did not contemplate, will be over his given offer, this will be a misunderstanding of ADR purposes. When accomplished mediators are used in resolving disputes, they can attain results that satisfy both parties in many cases beyond what the courts can achieve. When a party turns down chance of ADR that has been suggested by the courts, they will definitely face uncomfortable cost consequences; it is inappropriate to into account offers that were previously offered by ADR when the defendant refuses to mediate. Court’s encouragement and facilitation of ADR is an active aspect of managing cases and it assists in achieving overriding objective under CPR, hence the parties involved have the duty to further the objective and consider procedures of ADR. Part 20 of the respondent who is solely prosperous in a case would take an order for assessment of the costs, which will be paid by the respondent. Therefore, if the defendant had declined to participate in mediation on three occasions before the case came to trial, Part 20 states that the defendant should be denied the some or all costs incurred during the refusal. It is grave injustice depriving Part 20 defendant part of the costs declined for the defendant’s self-interest.10 Before hearing of an appeal, a solicitor representing the claimant writes to the solicitors representing the defendant to suggest the option of mediation, when there is no reply from the solicitors, they procedure acts as a matter of courtesy and the risks that may occur in explaining to the court why they did not opt for mediation. In such a case, mediation will lack realistic prospect for succeeding hence there is no reason to deprive the defendant any costs. The main reason for having mediation is that it assists in resolving problems that can be difficult; hence, when one agrees to this process and proceeds with it, what lies in the mouth of an individual who uses this process asserts that it lacked a realistic prospect of success.11 Unexplained withdrawal of a participant from agreed mediation is significant to continued litigation; it can be assumed that mediation can be successful, there is a certain prospect that the process would have an effect if it were allowed to take place, this will be evident in the issue of costs. There are circumstances where issues of conduct and questions proportionalities lack and the court itself had not ordered or given suggestions on embarking on mediation, therefore, a mere failure to submit to requests by unsuccessful party present in mediation process, in such a case, the successful party will be deprived its entitlement to order costs.12 It is difficult to understanding reasons behind denial of a successful party being penalised the costs because the complainant had not exposed himself to pressures of arguments of both sides that had been concluded upon by the judge when he makes judgement that is concluded incorrect. It is a relevant factor for mediation to fail and a failure requires much weight regarding circumstances in the case that were appropriate, but elevating the failure to a level that it becomes a predominant factor runs the risk of fettering the discretion of the court. In other circumstances, the court can fail to order a disclosure of negotiations without prejudice against the wish of one of the parties in mediation process, this was considered by Halsey in the case of Walker v Wilsher and it was considered a good law. In other cases, when it comes to questions regarding costs, the courts fail to decide on the side that has been unreasonable to refuse mediation. Such conclusions are not damaging or disastrous when compared to use of ADR because it was open to both parties and allowed them to make ADR offers or without prejudice save as to costs and requires the opposite party to respond to such kinds of offers either openly or in the form of ‘without prejudice save as to costs.13 The reasons for going to ADR may be argued between different parties, it can be accessible in the courts under Calder bank procedure, and this will consider costs. Adverse inference can be drawn against a party that refuses to disclose ‘without prejudice’ negotiations resulting in direct pressure on the party to permit disclosure, this would violate the principle. Bibliography ADR: Courting the idea. The Lawyer (2005 Aug 15): 18. Ali, Shahla, and Felicia Lee. 2011. Lessons learned from a comparative examination of global civil justice reforms. International Journal of Law and Management 53, (4): 262-280. Baugher, David. ADR can ease pain of divorces: Lawyers in the know weigh in on pros and cons for clients. Missouri Lawyers Media, Aug 29, 2010. Brewer, Geoff. Disputes over the payment of costs. Contract Journal 428, (6523) (2005): 74. Brooker, Penny. Criteria for the appropriate use of mediation in construction disputes. International Journal of Law in the Built Environment 1, (1): 2009, 82-97. Julian Sidoli del Ceno. An investigation into lawyer attitudes towards the use of mediation in commercial property disputes in England and Wales. International Journal of Law in the Built Environment 3, (2): 2011, 182-198. Goldman, Linda, and Joan Lewis. 2011. Settle out of court. Occupational Health 63, (8) (08): 12-13. Gordon, Nancy E. This judge does care about ADR. Family Advocate 31, (2) (2008): 12-13. Goswami, Nina. Influx of retired judges threatens to flood arbitration and ADR markets. The Lawyer (2008): 13. LITIGATION & ADR: Fighting funds. The Lawyer (2008): 29. Metcalfe, Christian. Strutts faces hefty legal bill for Malmesbury case. The Estates Gazette (2008): 33. Reich, Norbert. Consumer ADR in Europe: Civil justice systems. Common Market Law Review 50, (3) (2013): 913-915. Tuchmann, Eric P. 2013. ADR'S continuing development: A thriving component of the civil justice system. Of Counsel 32, (3) (03): 11-13. Read More