Advantages of Alternative Dispute Resolution over Taking Cases through the Courts - Essay Example

?THE ENGLISH LEGAL SYSTEM: GIVEN THE MANY ADVANTAGES OF ALTERNATIVE DISPUTE RESOLUTION OVER TAKING CASES THROUGH THE COURTS, CONSIDER WHETHER ADR SHOULD BE MADE COMPULSORY." By Author’s Name Name of the Class Name of the Professor Name of the School City, State 18 December 2013 Introduction Over the last two decades, Alternative Dispute Resolution (ADR) has been involved in settling disputes alongside the civil justice system in the UK. The numbers of cases filed in the courts have always been increasing like in any other nation, and the pressure arising from resolving these conflicts requires integrated effort and procedures to deliver justice appropriately. ADR not only touches on the legal education and the practitioners, but affects the society and parties seeking to resolve their differences. ADR consists of other methods used to resolve disputes, excluding the litigations or normal court trials and actions. Arbitration and mediation are the commonly known approaches, though negotiation and conciliation have also grown to be accepted across many countries. However, they pose some differences when it comes to actual practice, where methods like mediation and conciliation assist parties to reach to a settlement, but keep off from making the final decision, while arbitration does. Negotiation can be conducted by the two parties involved as the rest three, require a third party. Tracing back from the beginning of Lord Woolf’s tenure, there has been a change of attitude over the use of the ADR in the England society, despite the great division of practitioners in favor and against it. Since its official establishment under the Legal Service Authority Act, then in Lord Woolf’s reform, Access to justice Act, and the civil procedure rules (CPR) towards the end of the 90s, it has demonstrated it capability to settle conflicts amicably, its great influence and importance in delivering justice. Woolf’s report of 1996 recommended increased use of ADR, and through CPR of 1999, courts were allowed to call on ADR where appropriate, and even permit judges to halt cases so that parties could use the alternatives (Souper, 2008). It has demonstrated numerous merits in the justice system, but still highly opposed by a group in the society. The methods have since then been optional or recommended by courts. Making it compulsory raises concern to various groups in the education and legal system, and ultimately the society. Thesis ADR has acquired an expanding role within the civil justice system, and has been used successfully in several civil disputes. While the court has been used as the last resort in resolving disputes, making ADR compulsory raises certain serious questions, with regard to the will of the parties to apply the methods, and the depth and type of dispute at hand . ADR role in the law field has expanded over time, and has continued to support the civil justice system in the UK, but it is too soon and rather naive to make it mandatory, despite its vast strengths. ADR’s suitability in certain applications is skeptical and demonstrates varying weaknesses. Nevertheless, majority of the cases can be handled through ADR and settled within a short period and with fewer resources for the benefit of the concerned parties. Strengths of ADR 1. Partial resolution of disputes When a case is filed and brought before the judge in court, all the issues including the tender once that could have been settled easily are left for the court to decide. By the time the court is capturing and dealing with the main dispute, it has to conduct hearings of all the numerous differences supporting the claims of the involved parties. This consumes more resources, while ADR could have been used to deliver efficient hearings and resolution of the issues where possible. One of the goals of ADR is providing “effective and efficient hearing even in cases where partial resolutions are reached”; hence reducing the number of problems that need to be addressed when the case is forwarded to the courts as the last resort (Alberta Energy Regulator, 2013, p. 2). Those issues that prove difficult to resolve using ADR are taken to court and end up consuming fewer resources, but a final ruling is made to fully settle the dispute. Most organizations in the contemporary world support these procedures, and have continued to increase their level of confidence in the outcomes of the ADR processes. For example, during FY 95, the United States Air Force achieved 78 percent of full/partial settlements where ADR was used in 770 EEO reported complaints (ADR.gov, n.d.). 2. Reduced court workload ADR is a developing segment of the legal framework in most countries. Private ADR firms are coming up and the societies need to be made aware of their greater flexibility. Today, most courts in the UK are under a tight schedule to offer fair hearings and justice, due to the ever increasing workload (filed lawsuits). More cases are been filed in courts, including the minor offences and small claims. As a result, the court’s workload tends to exceed the number of judicial officers and the jury ends up causing delays in delivery of the verdict. A single case that can be solved within say two months provided the requisite resources through mediation or arbitration ends up taking a year or more in courts. ADR can handle the common disputes arising from the commercial and social domains, and any other minor claims and offences, regardless of the type of the case, which all end up in courts and consume valuable time that would have been spent on delayed and critical litigations. With the help of trained legal practitioners and retired judicial officials (like the former judges experienced in ADR techniques), public and private ADR firms can assist in handling the numerous caseloads (Rolph, Moller and Petersen, 1994). Commercial litigations are the majority in courts and require speedy resolutions. However, it becomes impossible with the imbalance judge and cases ratio, due to the limited resources. Courts can refer potential and minor cases like family conflicts, internal organization’s affairs and consumer disputes among others to utilize ADR. Most of the divorce, customary, and custody issues often taken to family courts seem to be the majority utilizing ADR. 3. Effective even during time and cost limitation Techniques of ADR offer the most flexible hearing and manipulation of resources to reach a resolution. Working together with the courts, methods like arbitration and mediation compliments the courts’ role in resolving disputes, but using minimal resources. Litigations accrue to high costs on capital and time compared to the ADR. According to Viewpoint forum, a survey of the firms that used ADR process incurred a total cost ranging between 3 to 50 percent of the cost incurred by those that prefer litigations, and shortening the time to disposition (range between a month and a year) compared to court process (2011). The costs could vary with the method of ADR used and type of case being applied, and would even be costly if they are succeeded by a litigation. The cost of litigation is quite high and easily sways away the desire of the less financially capable parties, who opt not to seek justice because it is an extra expense. ADR can persuade even the low income earners to use less costly resources in pursing justice. Like William Gladstone stated, “justice delayed is justice denied:” urgently needed resolutions for certain disputes can be availed and the parties can return to their normal activities (VEA, 2008, p. 2). At the end, ADR proves to be speedy yet effective and cheaper than courts. 4. Privacy The value of parties’ privacy is held with great esteem, which improves their confidence over the agreed resolution. Unlike in court proceedings, ADR does not utilize professional or legal representations apart from the neutral third party in arbitration and mediation (Miller, 2012). Where ADR methods have been used, issues of publicity, especially the media are avoided, hence enabling a forum where conflicts are resolved with sufficient privacy possible. Certain commercial litigations that influence consumer choice can be best settled by arbitration in formal, but private sessions. Most of the multinational disputes that are solved using arbitration and mediation maintain confidentiality over the outcome and the remedy sought in the solving the conflict. The London Court of Arbitration has been very effective and continues to support ADR and upholds the arbitration awards based on restrictive conditions of the English law. Considering that each party desires reaching a fair conclusion of the case, they remain active and in control of the resolution process. It means that they define their terms of resolutions, maintain commitment, and control of the decisions to settle differences and restore peace. In negotiations, parties develop solutions they have crafted themselves and in other ADR methods, the solutions they have aid and generally enhance their satisfaction of the outcome. 5. Avoid winner/ loser situation Contrary to the courts, chances of ending up with a winner and a looser situation while using ADR are limited. This is because each party seeks to represent itself fully and lay its interests and needs as early as possible, so that a win-win situation for all can be achieved. It is essential for encouraging good relationships between the parties even after the dispute is settled. ADR tends to be quite effective in labor management, community justice, and family law, or in specific minor areas where the relationship could be damaged in case of litigations; hence, it is essential that the parties in the dispute come up with a solution they both agree to safeguard their future relationship, despite any problems that may develop after conflict settlement (Shin, 2011). Today, ADR provides a variety of avenues to solve workplace disputes amicably. Since 2006, more that 65 percent of the cases have been resolved through judicial mediation offered by the Employment tribunal around England and Wales (justice.gov.uk, n.d., p.1). 6. Choice of the third party and flexibilities in ADR procedures There are common complaints in litigations that dwell on trusts and biases in delivering ruling and in representation of the parties in courts. With ADR, besides the courts allocating the third party to aid in arbitration, mediation, and conciliation, clients can choose their preferred neutral third party to be the final decision makers or facilitators of the agreement among other required responsibilities (Atlas, Huber and Trachte-Huber, 2000). Due to the flexibility of the ADR, parties can explore options of the possibilities and opportunities, explore diverse ways to satisfy their interests, design their procedures and schedules at their set pace, and choose a neutral party based on their needs. Weakness of ADR 1. Generated high cost for unresolved cases later referred to courts Consider a situation where ADR has been made mandatory and parties engage in a guided technique like mediation, but end up without a partial or full solution to their dispute. The neutral partner from a private or public firm would charge some amount of fee for the services offered, which the concerned parties addressing the dispute have to share the costs. At times, the parties could be running away from the expensive litigations, but upon failure of settlement, they are forced to seek court interventions; hence the cost incurred in ADR method and expense of ultimate litigation escalates the high cost, due to further time of disposition and duplication of legal fees (Marson, 2013). Reputable and private ADR firms may have very slight variations in their fee charges compared to the courts depending on the case they handle. It would be advisable for parties to consider the approximated costs in the type of ADR they prefer to use over litigation before a case commences. To worsen the situation, the loosing partner ends up with the burden of paying reasonable costs incurred by the winner in the course of litigation. In cases where the validity of the agreement tends to be a problem, some parties seek enforcement through courts and end up being another unexpected costly ligation. Refer to Barry v city west water Limited [2002] FCA 2012. 2. ADR is not a universal panacea The use of ADR methods may not be possibly effective for every dispute. Most of the commercial and criminal cases may not be possibly left for the ADR methods, because of the involuntary will to participate and other factors that exist contrary to the main objective. For example, mediation may not be effective and may fail to produce a quality conflict resolution, if the parties are not committed to resolve it, and are unwilling to participate in good faith (Green, 2010). Cases of first degree felonies are not suitable candidates for ADR like the minor and customary disputes arising in the society. 3. Differences in bargaining power Using ADR methods especially in the absence of the third party in negotiations and their influence in decision making for mediated cases could result in unequal power for one of the parties, because people have natural and acquired power differences based on their knowledge, financial, and emotional influence. One of the parties could be swiftly influenced to lead in an agreement that ends up satisfying the needs of the other parties more. According to Blake, Sime and Browne, the potential advantages of using evidential rule are lost because disclosure of evidence, while using ADR options may be limited or non compulsory (2012). Where the ADR is binding, the parties end up forgoing the courts protections, while relying on insufficient information could end up reducing the chances of better resolutions. Conclusion Comparing the US and the UK, the former has utilized the ADR methods alongside the court processes more than in the UK. ADR can be termed to be still young in the UK. The country therefore has not enough time to reap the full benefits of the system. ADR provides lots of benefits to the society ranging from minimized judicial workloads, expenses and time of resolving disputes, enhance flexibility and confidentiality among others; however, its weaknesses have a substantial effect that tends to cancelling out of its numerous strengths. It would therefore be reasonable to encourage application of ADR techniques to certain limits where suitable, but not compel parties to utilize them against their will. In any case, ADR should be promoted to enhance public will to resolve disputes using the methods, and serve to compliment the English justice system, rather than displace it from its role. Reference List ADR.gov, n.d. Contracts and Procurement: Air Force Success Report Memorandum for Secretary Widnall. [online] Available at: [Accessed 18 December 2013]. Alberta Energy Regulator, 2013. Alternative Dispute resolution program and Guidelines for Energy Industry Disputes. [online] Available at: [Accessed 18 December 2013] Atlas, N.F., Huber, S. K. and Trachte-Huber, E.W. ed., 2000. Alternative Dispute Resolution: The Litigator's Handbook. Chicago: American Bar Association. Barry v City West Water Limited [2002] FCA 2012. Blake, S., Sime, S. and Browne, J.ed., 2012. A Practical Approach to Alternative Dispute Resolution. Oxford: Oxford University Press. Green, C., 2010. ADR: Where did the 'alternative' go? Why mediation should not be a mandatory step in the litigation process. ADR Bulletin, 12 (3). [online] Available at: [Accessed 19 December 2013]. Justice.gov.uk, n.d. Judicial Mediation: Employment Tribunals (England and Wales). [online] Available at: [Accessed 19 December 2013]. Marson, J. ed., 2013. Business law. Oxford: Oxford University Press Miller, R. L. ed., 2012. Essentials of Legal Environment. Belmont: Cengage Learning. Rolph, E. S., Moller, E. and Petersen, L., 1994. Escaping the Court House: Private Alternative Dispute Resolution in Los Angeles. [online] Available at: [Accessed 18 December 2013]. Shin, J., 2011. Discussion on the Models of ADR. [online] Available at:[Accessed 19 December 2013]. Souper, M., 2008. Alternatives to the Courts- ADR Introduction. [online] Available at: [Accessed 18 December 2013]. VEA. 2008. Alternative Dispute Resolution. [online] Available at: [Accessed 18 December 2013]. ViewPoint, 2011. Setting Out of Courts: How Effective is Alternative Dispute Resolution. The World Bank Group: Financial and Private Sector Development Vice President, (329): p.1-6 [online] Available at: [Accessed 18 December 2013]. Read More