How We Could Use Alternative Dispute Resolution To Settle Civil Justice Matters More Efficiently - Essay Example

The Arbitration Act 1966 and 19965 provided full court application of one of the ADR procedures, following the lead of UNCITRAL's 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards paving the way to acceptance of arbitration in international trade dispute resolution. The methods were taken up by the public after they have been officially encouraged in Lord Woolf's 1996 "Access to Justice" report.6 The Police (Northern Ireland) Act 20007 is one of the more recent statutes applying ADR to administrative tribunal cases following PACE 1984, infra.

The cost effectiveness of ADR has been fully demonstrated in commercial litigation. It has also placed or misplaced false hopes on the alternative methods application in civil cases. Civil case application of ADR encouraged the proliferation of profit and non-profit ADR providers and services with fully trained and accredited ADR practitioners, most of whom are also solicitors. The CPR required active management of cases by judges, including encouragement of litigating parties to use ADR. For the purpose of facilitating ADR use by litigants, CPR allows the court to stay its proceedings while the parties concerned try to settle the case.

Pre-action protocols were also installed, requiring parties to let each other know the basis of their proposed claims and defences. The importance of ADR is emphasized in several judicial decisions. In Cowl vs. Plymouth9, the Court of Appeals imposed cost sanctions on a party for unreasonable failure to use ADR. Solicitors are also required to apprise clients of ADR, otherwise, they will be considered professionally negligent. Apart from judicial initiative, the executive also introduced ADR in government departments and administrative tribunals, particularly in clinical negligence claims, employment and legal services. Mr. Justice Lightman, a Justice of the High Court Chancery Division, presented ADR with high hopes as a necessary alternative to "extravagantly expensive and unpredictable exercise"10 of litigation.

It must be recognized that ADR is "an ever evolving process."11 Newer methods are being introduced and legislation, including rules of court would tend to be left behind. Current consensus among law practioners tend to limit ADR use to arbitration and mediation. The failure of the use of inappropriate ADR method force the parties to incur needless expenses. On this note, the observations of Sir Anthony Evans triggers a painful spot when he pointed out that it is the agreement of the parties to come to a settlement that is responsible for the supposed success of ADR and not ADR processes themselves.

In fact, he emphasized that "a settlement agreement is always to be preferred to any of the [ADR] processes which may result in a binding decision".12 He meant that solicitors and judges should look at the nature of the case before influencing the parties to undergo ADR procedures that could be inappropriate and ineffective. He also pointed out