Advantages and Disadvantages of Alternative Dispute Resolution - Assignment Example

Law Essay Questions Question Alternative Dispute Resolution Alternative dispute resolution (ADR)refers to various mechanisms used to settle disputes other by the means of the court system. They may include facilitated settlement negotiations where the conflicting parties are inspired hold direct negotiation with each other before they hold an official arbitration system (Rawlings, Leyland & Young, 2013). ADR involves intervention of a third party to resolve the conflict between the differing parties. Mediation increases certainty of attaining solution to disputes. The mediator should be well versed with matters of law and could be a judge or an advocate (Law Teacher, 2014). The parties should have a high probability of the outcome of the mediation process before engaging a third party to listen to his or her views. The outcome of the mediation process may not vary much compared to litigation through the court system and even more the procedure is conducted in a friendly environment (Thompson & Gordon, 2014, p. 134). However, the mediation process could result to additional expense in some cases and possibility of delay in case the parties fail to arrive at an agreement. In the case of Halsey v Milton Keynes [19], the court provided direction Advantages of ADR ADR is beneficial to the disputing parties because it helps them reach consensus at greater efficiency and cost effectively (Loveland, 2012, p. 68). Cost efficiency is achieved where the mediation process is carried out through Family Mediation Service or court system because most of the costs are borne by the state. Furthermore, even in a situation where mediation is provided by private mediators the cost is shared by the parties concerned. Therefore, ADR is can be cost effective dispute resolution mechanism though this will be only applicable in cases where there is a successful settlement of the issues between the parties involved. The conflicting parties are sometimes involved in the mediation process thus giving them some control of the process (Loveland, 2012). The time when issues can be settled, and the privacy of the matters discussed between mediators and the conflicting parties are of great significance to the parties. However, since parties have the right to decide on should mediate the matter and place where mediation can take place then it becomes crystal clear that ADR gives the parties more control over mediation process which results to greater efficiency and confidentiality (Thompson & Gordon, 2014). Unlike in the litigation process where parties involved may end up with bitterness against each other irrespective of the outcome, the advantage with ADR is that the parties may offer apologies to their opponents once a decision has been arrived (Rawlings, Leyland & Young, 2013). Mediators can expedite the wronged party to take part in establishing a new procedure to stop future recurrence of incidents causing disputes. Therefore, the mediation process offers significant flexibility in settlement of the issues that can empower the parties to take part in making decisions that can prevent recurrence of disputes in the future (Loveland, 2012). ADR can result to faster solution to disputes than going through the court system. Since there are many cases presented to the court every day and the judges are not adequate to handle all of them simultaneously then it becomes necessary to use ADR because the parties can decide on who should mediate the case and set convenient time and place for conducting mediation (Loveland, 2012). In fact the accumulation of files in the court has been the main contributing factor to the establishment of ADR so that parties can reduce the amount of time they could otherwise spend if they decided to settle issues through the court (Thompson & Gordon, 2014, 167). Some people would never like to have their case delayed because it would lead to delaying the justice. Therefore, in order to avoid delaying justice most parties opt to settle issues outside the court system since the expected outcome is almost similar. Disadvantages of ADR Settling cases outside the court system results to additional cost to be borne by the partied involved. Although cost sharing among the parties could be beneficial after all issues have been settled successfully it is quite expensive in the circumstances where the parties fail to arrive at an agreement (Rawlings, Leyland & Young, 2013). Therefore, it is essential for the parties involved to make proper assessment of the issues to be addressed by the mediators and predict the possible outcome before committing resources and time. In the case the parties are convinced that the outcome of the mediation process will not yield desired outcome they should engage the normal court system in order to avoid incurring additional cost (Loveland, 2012. P. 324). Therefore, failed mediation process can be quite expensive compared to normal court process. Solving legal issues through other means other than by litigation can disadvantage the parties in a number of ways. In most cases mediators have no adequate legal capacity to ensure sufficient delivery of justice to the parties (Thompson & Gordon, 2014). The wronged party may not be given appropriate compensation for the damages caused because the issues are settled in a friendlier environment than the court atmosphere. On the other hand, the offender may not be penalized the way they deserve, and that may not achieve the objective of the legal system of dispute resolution (Loveland, 2012). Therefore, ADR could result to other issues such as lack of adequate justice for the victims hence may result to recurring of disputes in the future. Question 2: Supremacy of the Act In a democratic government, there is an elected assembly representing public, and that assembly has powers to enact legislations that apply to the public (Loveland, 2012). In most of those nations, the existence of the assembly and it powers are stipulated in the constitution. The parliament established measure and procedures that came to be recognized as laws. Later, it emerged that measures and procedures passed by the parliament and approved by the monarch could amend the common law. Furthermore, Elizabeth I and Henry VIII used the English parliament to achieve the supremacy of the Crown of England over all persons and foundations (Longman, 2010, p. 52). This was viewed as the sovereign rights of the powers of the king to legislate with the assent of the House of Commons and House of Lords. The roles of the parliament were also stressed the importance of the two chambers acting on behalf of the citizens and the nobility (Law Teacher, 2014). Through his council, the King applied its absolute executive powers as well as residue of judicial and legislative power without regard for the existence of the Acts of parliament. The judicial supremacy of parliament implies there are no legal restrictions on the law-making powers of the parliament (Rawlings, Leyland & Young, 2013, p. 54). The parliament refers to constitutional entity called Queen in Parliament including the procedure used by the Commons and Lords to approve the bills and giving the assent to become an Act of Parliament. The parliament is, therefore, recognized as the supreme legislative body, and no other person or body has the power to override the legislative power of the UK parliament (Longman, 2010, p. 52). The case of Mortensen v Peters illustrates the relationship between UK parliament and the international laws (Thompson & Gordon, 2014). In the exercise of its power, the British parliament enacted legislation the Herring Fishery (Scotland) Act that gave Scotland’s Fishery Board mandate to enact bylaws for regulating fishing activities in the Moray Firth. Since Moray extended beyond three miles from the land, it conflicted with the international laws that prohibited the nations against conducting fishing beyond three miles from the land. The Danish master was convicted for breaking the bylaws, and the high court of Justiciary issued that its powers involved interpreting the Act and the bylaws (Thompson & Gordon, 2014). Also, the argued that the parliament intention was to enact laws to regulate the conducts of all persons within the Moray Firth regardless of the position of the international laws. They declared that the Acts of parliament enacted by the Commons and Lords and approved by the King is supreme thus the court was obliged to make it effective (Law Teacher, 2014). Therefore, the court cannot nullify the Act of parliament just because it contradicts the international treaties which UK is affiliated to. Whereas the UK laws are enacted to regulate conducts of UK citizens within their territories, the laws have been enforced across the border in some occasions. For example, the Continental Shelf Act 1964 conferred the Queen Powers of exploiting and exploring the continental shelf (Rawlings, Leyland & Young, 2013, p.132). The Act provided for the application of criminal and civil laws concerning installations placed in the water surface above the continental shelf. For example, the crimes of treason, bigamy, murder and an offense relating to some revenue or any form of torture is considered crime in the UK court. Although the Acts of parliament were enacted to regulate the conducts of citizens in UK it has limited application internationally in both criminal and civil matters (Loveland, 2012). Unless the effect of law has been expressed in the UK constitution, the court will interpret the statute without giving it any extraterritorial effect (Loveland, 2012). The parliament ensures the enacted law does not contradict the comity of nations. UK has engaged in signing various international treaties with other communities with an example of European Community (EU). However, the UK laws have not maintained similar pace with the changing nation’s varying international commitments. If the government is to enter into an international relation that may require any alteration of the national laws, the treaty must be approved or adopted by the Act of Parliament (Longman, 2010, p. 52). Even in the situation where the government may ratify a treaty which in some instances may create a legitimate expectation that the government will act according to the treaty (Rawlings, Leyland & Young, 2013, p. 189). However, the parliament has no obligation to implement the treaty in national law. The parliament has unlimited legislative power, and this has been portrayed through it power to change the constitution through a simple Act of parliament. For example, the Settlement Act 1701 changed the line of succession to the crown (Loveland, 2012). The Acts of parliament 1911 and that of 1949 was enacted to limit the power of one of the constituent’s Houses of parliament. The Act of Union 1707 changed the structure of United Kingdom and so on. Therefore, from the case of Mortensen v Peter (1906) 14SLT227, High Court of Justiciary, it is apparent that the international laws can be applied national only to the extent in which they do not contradict the national laws. Furthermore, before adopting international laws into the national laws the government must seek the approval of the parliament and can be ratified through approval by an Act of Parliament (Thompson & Gordon, 2014). Therefore, it is apparent that the legislative power of the parliament in UK has not been changed even after he formation of European Union because all the laws enacted by the EU and any other international organization must comply with national laws or be approved by the Act of parliament (Law Teacher, 2014). It can even be argued that the legislative powers of the UK parliament have extended to include approving the international laws applicable across the borders. Question 3: Discretion and Creative Power of Judiciary The roles of judiciary in UK are not envisaged in any single document. The roles are not static and have continued to evolve over time from various sources such as conventions, common law precedents and Acts of parliament. According to House of Commons (2014), the traditional roles of the judiciary are interpretive in nature. Judiciary role is to resolve disputes objectively and fairly according to the law and in accordance to the powers conferred to the judiciary by the parliament. Sometimes the laws or statutes may be ambiguous in which case it will require the effort of the judiciary to interpret and give it meaning. This may arise in the case of poorly structured Act or when the Act fails to cover all prospects of legal issues such as those relating to technical matters (Thompson & Gordon, 2014). In the application of interpretive power the judiciary protects basic rights and freedom of individuals including the powers of the Human Right Acts 1998 (Thompson & Gordon, 2014). The judiciary adjudicates on legal issues concerning the exercise of authority by executive and legislative institutions in Northern Ireland, Wales, and Scotland according to devolution settlements established by the UK parliament (House of Commons, 2014). Furthermore, the judiciary has responsibility to settle legal issues relating to powers of the institutions established under the constitution such as the powers between the UK government and the UK parliament, the powers between the local government and the central government, etc. The judiciary has the mandate to litigate the issues on division of power between the UK and the European Union as determined in the primary rulings by the European Court of Justice. Finally, it has the power to review the executive conducts and delegated statutes by ensuring that public institutions operates within the powers conferred on them by parliament Acts and other legal principles of fairness and rationality established by the judges (Thompson & Gordon, 2014, 162). The role of judiciary has undergone major changes and even now it continues to evolve. In the application of the law the judiciary exercises rights that extend the roles of judiciary beyond the traditional power of interpreting the law (House of Commons, 2014). The judiciary is responsible for creating laws as depicted on the way it performs. For example, when issuing verdict the presiding judges are required to issue a statement of reasons on how it arrived at the judgment. The by the way statement delivered by the judge is referred as “obiter dicta” (House of Commons, 2014). In the application of statutes the judges have always relied on the obiter dicta made by other judges or same judges in an earlier ruling to form the foundation of the ruling in another case despite the obiter dicta being the personal opinion of other judges or the same judges made in an earlier ruling (Thompson & Gordon, 2014). The use of the statement of opinion of one judge in another court was applied in the case of R v R [1991] UKHL 12. The use of obiter dicta in court diverts from the traditional view that the role of judiciary is to interpret laws to include the role of law making. Furthermore, the judges apply the principle of judicial precedent to assess the facts in the past cases and relate to the facts in the present cases in order to achieve the certainty of the ruling (House of Commons, 2014). However, the extent to which the judicial precedent applies in the present case depends on whether the rule was applied fairly and impartially. If the presiding judges believe that the previous ruling was inadequate or unfair, they were power to divert from the precedent and make an independent decision. For example, in the case of Anderton -v- Ryan; HL 1985, the new ruling altered the earlier position of the court decided in the case of R v Shivpuri [1986] UKHL 2, in order to avoid repeating the mistake made earlier. The use of precedent has conflicts with the traditional view about the role of judiciary because precedents have contributed to the development of the new law. Question 4: Balancing certainty and flexibility of Law When resolving legal disputes judges review previous cases related to the case at hand in order to ensure consistency or avoid arriving at conflicting decisions from the previous cases. This ensures harmonious delivery of justice since the award that was given at one time is applied in another case of the same nature (Wolff, 2011). The decision of a superior court is applicable to another court of similar of lower jurisdiction and so they are obliged to rely on that rule when deciding similar cases. Furthermore, the court cannot divert from its early rule without a convincing reason (Hudson, 2012, p. 54). Although the use of judicial precedent enable judges to achieve uniformity and avoid awkward decisions it should be flexible in order to allow judges to adjust the principles of rule of law to apply in different but related cases (Hudson, 2012). This document examines how court achieves certainty and flexibility in application of case laws. Flexibility is a feature of the application of the common law that enables judges to issue verdicts based on reason instead of arriving at a vague decision (Hudson, 2012). It offers judges with direction to apply the law in regard to particular issues. As stated by Lord Scarman “the search for certainty can obstruct the law’s pursuit of justice and can become the enemy of the good (Hudson, 2012, 75).” Therefore, flexibility rule is considered necessary in order to provide room for making rulings in different cases and decided in the case of McLoughlin v OBrien [1982]. Legal certainty is the basis of common law, and it refers to the outcome of predictability of a legal case. Instead of applying the rule or law arbitrarily the court relate issue with previous legal issues such that it becomes easy to pre-determine the outcome of related cases. The certainty of legislation helps in determining what ought to be done or what one should be avoided in order to ensure they abide by the law (Wolff, 2011). On the other hand, flexibility of the rule of law allows judges to adjust their decisions instead compelling the judges to stick to a particular submission outcome. Flexibility differs from certainty because it does not allow the prediction of the outcome of the case. The doctrines of precedent are selected for communication on canons of behavior and are applicable in the majority of the cases (Thompson & Gordon, 2014). However, their application may not be possible in some cases thus requiring the presiding judge or judges to divert from the earlier ruling. The court may also take a different opinion from the previous decisions if they feel that ruling lacked material fact or was not appropriately applied (Hudson, 2012). Furthermore, the superior court is not bound by the persuasive precedent or the rulings of an inferior court however convincing it may seem to be. The court decision is a conclusive outcome of majority judges thus it represents the fair ruling in the case based in previous findings as well as current position (Wolff, 2011). Although every legal person has a right to claim for fear legal procedure there is no guarantee for certainty of the ruling. Therefore, the ruling is based on the expansive interpretation of the relevant facts and legal issues. The doctrine of precedent requires the court to apply the decision of a superior court or a court of similar jurisdiction in the presiding related cases as stated in the case of Rondel v. Worsley [1969] 1 AC 191. The court is not bound by the precedents that lacked care in the original “Per Incuriam.” Therefore, the court ensures certainty by adhering to the previous decisions so long as that decision was fairly determined. On the other hand, they ensure flexibility by exercising freedom to vary from previous decisions that contradicted the doctrine of fair legal process (Hudson, 2012). The court relies on the discretion rule or principle determined in the previous rulings where it is either binding or convincing for the court and other tribunals when deciding succeeding cases with similar facts (Wolff, 2011). It is a requirement of common law to apply uniform rule in related cases in order to arrive at similar decisions and predict the outcome of the cases. It enables the court to rely on rulings of the previous cases without interfering with the unsettle cases. Therefore, the court can either achieve certainty or flexibility but cannot achieve both concurrently. Bibliography Anderton -v- Ryan; HL 1985 Halsey v Milton Keynes [19] House of Commons, (2014). Constitutional Role of the Judiciary if there were a Codified Constitution. London: The Stationery Office Limited Pp. 1-34. Hudson, A. (2012). Understanding Equity & Trusts Available at Law Teacher. (2014). Constitutional role of the judiciary. Available ar Loveland, I. (2012). Constitutional Law, Administrative Law, and Human Rights: A Critical Introduction. UK: Oxford University Press. Pp. 1-794. Longman (2010). Constitutional and Administrative Law, CHAPTER 4: Parliamentary supremacy M04_BRAD3505_15_SE_C04.QXD pp. 48-74. Available at Mortensen v Peter (1906) 14SLT227 Rawlings, R., Leyland, P. & Young, A. (ed). (2013). Sovereignty and the Law: Domestic, European and International Perspectives. UK: Oxford University Press. Pp. 89-350. R v Shivpuri [1986] UKHL 2 Rondel v. Worsley [1969] 1 AC 191 Routledge. Pp. 6-272. Ryan, M. & Foster S. (2014). Unlocking Constitutional and Administrative Law, (3rd ed). Routledge, Pp. 155-523. Thompson, B. & Gordon, M. (2014). Cases and Materials on Constitutional and Administrative Law, (11th Ed.). UK: Oxford University Press. Pp. 49- 693 Wolff, L. (2011). Law and Flexibility-Rule of Law Limits of a Rhetorical Silver Bullet. The Journal Jurisprudence. Available at Read More