The Price of Access to Justice - Essay Example

Stychin, CF., Mulcahy, L. (2007). "Legal Methods and Systems: Text and Materials". 3rd Edition. Litigation merely holds itself out as a tool for objectively measuring the boundaries and freedoms by which people co-exist in law-enforced society. It therefore follows substantive law is the backbone of normative justice, and procedural law is no more than a means by which to achieve normative justice. To that end, mediation provides a means by which the substantive law can be achieved when traditional litigation is not possible. In today’s current litigious society, where the courts have become inundated with cases that clog the system and require time and expense to pursue, mediation provides a viable means of allowing access to justice. As H.L.A Hart states: “...there are certain principles of human conduct, awaiting discovery by human reason, which man-made law must conform if it is to be valid.”1 The difficulty for disputants today is access to traditional methods of normative justice is not automatic. There are a number of barriers, most notably the courts’ inability to accommodate complaints at all levels in a timely and cost effective manner. As a result, many people are driven away from litigation with disputes that remain unresolved resulting in social justice not being achieved. Mediation, however, has been worked into the British justice system as a means of providing alternative relief for those entitled to social justice. In 1996, Lord Woolf issued a report influenced by the overburdened justice system in which he states: “My approach to civil justice is that dispute should, wherever possible, be resolved without litigation. Where litigation is unavoidable, it should be conducted with a view to encouraging settlement at the earliest appropriate stage.”2 In recognising the value of alternative forms of access to justice to those who have been disadvantaged by the overburdened courts, Lord Woolf goes on to recommend the courts play a significant part in educating the public about alternative forms of dispute resolution. In fact, Lord Woolf insists the courts encourage alternative dispute resolution by adding: “The court will encourage the use of ADR at case management conferences and pre-trial reviews and will take into account whether the parties have unreasonably refused to try ADR or behaved unreasonable in the course of ADR.”3 Rule 1 of the Civil Procedure Rules, 1999 reflects much of Lord Woolf’s position with the important role mediation and alternative dispute resolution mechanisms can provide in relieving the overburdened courts in addition to providing disputants with some level of social justice. Rule 1 authorises the court to encourage the parties to a dispute to seek alternative dispute resolution in appropriate cases.4 In this type of instance the court will stay the proceedings to allow for alternative dispute resolution.5 In the event a party refuses to cooperate with the judge’s recommendation he or she can be condemned in the costs.6 In determining costs the court is permitted to take into account: “...the efforts made, if any, before and during the proceedings in order to try and resolve the dispute.”7 The amalgamation of mediation and alternative dispute resolution with traditional litigation only strengthens the merits of mediation as a form of social justice by virtue of an alternative normative framework. The fact remains substantive laws, which reflects the rule of law extends the ambit of litigation to include mediation with the result that it becomes a valuable source of dispute resolution and is particularly valuable to those who cannot afford the time or the money to pursue formal litigation. The Access to Justice Act 1999 for instance, specifically supports the concept of alternative dispute resolution. The Community Legal Service Fund, which set up a new scheme for the allocation of legal aid, was established by virtue of the Access to Justice Act 1999.8 Under the Community Legal Service Fund, the most recent Funding Code and Funding Code Guidance 2005, Criterion 5.4.3 mandates as follows: “...an application for funding may be refused if there are complaint systems, ombudsman schemes, or forms of alternative dispute resolution which should be tried before litigation is pursued.”9 This statutory method of promoting alternative dispute resolution serves to validate mediation as well as other forms of alternative dispute resolution mechanisms as valuable methods of alternative normative frameworks. In other words, mediation is presented by the courts via the legislators as an informal method to dispute resolution rather than a weak form of alternative dispute resolution. It is firmly established adjudication by litigation is founded upon principles of natural law regulated by a well-defined system of regulatory rules.10 The regulatory framework is not only binding on disputants but it also binds the courts resulting in disputants, present and future, having a measure of consistency and predictability that is associated with formal litigation which is not likewise characteristic of mediation and other forms of alternative dispute resolution processes in general. More importantly perhaps, is the fact that court decisions are capable of review almost automatically and errors can be reviewed and corrected by appellate courts. Be that as it may, mediation and alternative dispute resolution have been around since the Romans which in and of itself speaks to its continual satisfactory method of resolving disputes.11 Ironically, the lack of transparency associated with mediation and alternative dispute resolution, although perceived as a fundamental weakness of alternative dispute resolution is one of its saving graces, however. While it may not provide a means of adequately facilitating judicial review it provides a measure of confidentiality in respect of business relationships which ought to survive the dispute settlement process. In Emmott v Michael Wilson Partners Ltd [2008] All ER (D) 162 the Court of Appeal acknowledged that while disclosure would only be permitted in limited circumstances, confidentiality could be waived in the interest of justice.12 The nature of mediation itself dictates that it should be conducted between the parties out of public scrutiny. It is an agreement to resolve disputes arising out of specific civil relationships and vests in the parties a measure of self-determination and empowerment.13 Opening the process up to publicity takes away from the elements of self-determination and empowerment which lends itself to an informal environment. If mediation were otherwise, parties would be influenced by the formalities associated with public displays of litigation and the formation of a public record. Therefore, mediation by its very nature requires confidentiality and a lack of transparency to promote an alternative form of dispute resolution. Mediation is tailored to the specific needs of the disputants and as such has no value for those who are not parties to a particular dispute. It therefore follows that the mediation process does not benefit from a formal documented process nor does it benefit from media attention. Each stage of the mediation process is specifically negotiated between the disputants with the result that judicial review is entirely unnecessary. Mediators do not provide orders or judgments, they encourage resolution by consent with the result that the parties agree with the resolution and there is nothing to review.14 Conclusion In the final analysis, access to justice comes at a price. It involves investment of funds and time with no real certainty that the disputants will recover the funds spent litigating. Mediation, on the other hand provides disputants with some measure of control over the time and the funds spent on conflict management. 15 By permitting this level of management, those who would otherwise not have access to litigation or those who have become distrustful or disenchanted with the litigation process at least have access to a form of social justice through mediation with the result that disputes can be settled by alternative normative frameworks. There is at least some certainty that natural justice will prevail in either process. Bibliography Access to Justice Act 1999 Baker, J.H. (1979) “The Law Mechant and the Common Law Before 1700.” Cambridge Law Journal, Vol. 38, 295 Civil Procedure Rules, 1999 Cobb, Sara. (1993). “Empowerment and Mediation: A Narrative Perspective”. Negotiation Journal. Vol. 9 Issue No. 3 pp 245-255 Doyle, Margaret. (2006) Advising on ADR: the essential guide to appropriate dispute resolution. London: Advice Service Alliance Emmott v Michael Wilson Partners Ltd [2008] All ER (D) 162 Funding Code and Funding Guidance Code 2005 Galanter, Marc. (1974). “Why the ‘Haves’ Come Out Ahead: Speculations on the Limits of Legal Change.” 9 Law & Society Review. 95 Hart, L.A., The Concept of Law. Oxford: Oxford University Press Melish, Tara, J. (2006). “Justice vs Justiciability?: Normative Neutrality and Technical Precision, The Role of the Lawyer in Supranational Social Rights Litigation.” New York University Journal of International Law and Politics. Vol. 39, 385-412 Woolf, The Rt. Hon. Lord. (1996). “Final Report to the Lord Chancellor on the Civil Justice System in England and Wales.” HMSO. Read More