Mediation and the Alternative Methods of Settling Disputes: the English Civil System - Research Paper Example

 The American common law system shares differences and similarities with the British common law system. They are similar because the American common law system came from the British common law system. And yet, they are different because they were and are now being applied in two different countries with different histories and regulations. The English common law system was not fully applied to the early American colonies without some sort of modification. The distinction that the English had between solicitors and barristers; the tradition of drawing judges from the barristers; and the legal profession’s monopoly of legal education did not find root in the colonies (Mehren, 2000, p. 5). However, the more essential characteristics of the English legal system were retained in the Americas. The adjudication of cases based on case-specific circumstances was still very much applied in the New World. The changes that were brought about to the common law system in America were very much dependent on the new society, new culture, and the political changes being brought about in the new frontier. The Declaration of Independence brought about American public law- federalism, the presidential system, and the courts as guardians of the constitution. The first decades of the 19th Century brought about writings from jurists like Chancellor Kent and Justice Joseph Story. At about this time university legal education also took off. The usual practice of confining legal education to particular geographical jurisdictions was slowly declining. “National law schools provided a training which, with some additional work to master the particularities of a given jurisdiction’s law, prepared the student for practice in all states - except Louisiana -…” (Mehren 2000, pp 6-7). On the other hand, in England, legal education remained to be the area of expertise of practitioners until well into the 20th Century. The American legal system slowly evolved into the civil and common-law system that it is today. It remained faithful to the tenets of common law, while developing other qualities that moved it closer to civil law tradition. The English and the American common law systems are not that much different from each other. “English and American courts do not face the outside world as a single authority that always speaks with only one, unanimous and anonymous voice” (Mehren, 2000, p. 7). Adjudicators in the common law system are free to have their separate and dissenting opinions about a case. These decisions usually form part of the law and serve as precedents for adjudicating cases under similar circumstances. However, it has been noticed that American justices (as compared to their English counterparts) have been more willing to overrule their previous decisions. The expanding economy and society in America was not conducive to the more stiffer and rigid application of the English common law system which strictly applied the stare decisis concept. Hence the value of precedents did not hold as much water in the process of American adjudication. Common law practice in the United States is essentially similar to the English common law system, however, the changes that it has undergone are commensurate with the changes going on in the New World. “The standards to be used in identifying legal traditions are, of course, open to debate and become increasingly problematic as economic and social life become less and less localized with the consequence that attitudes and practices of jurists from different countries and societies tend to converge” (Mehren, 2000, 8). This proves, to some degree that the English common law system is adaptable to changes. The colonies settling in the Americas initially applied the English common law system to their legal problems, however, the changes going on and the geographical landscape in their new country necessitated some adjustments to the applications of the common law system. The differences between the common law system of the United States and England are very much obvious in the procedural sense. According to Chase & Bruner (2005, pp. 55-65), the differences are seen in the civil jury process, litigant-controlled pre-trial process, the role of the judge during the hearing or trial, and the power of the litigants to choose their own experts to testify on technical matters. The civil jury’s role in the American legal system very much comprises the adjudication and litigation of legal disputes. Whereas, in Britain, the jury system is now only reserved for very few cases, the American legal system is dependent on the role of the jury in most of its legal disputes. The retention of the jury system in the American common law system is a product of core American values founded on “an egalitarian, populist, anti-statist institution” (Chase & Bruner, 2005, pp. 55-56). In the initial days of the colonials in American soil, the British crown greatly influenced the jury system. However, by the mid-18th Century, the American jurists started to distinguish and set themselves apart from the British crown. In retrospect, the jury became another way of resisting British rule and influence over the colonials. The pre-trial process in the American common-law system is controlled by the litigants. The litigants have the power to investigate facts before the onset of trial. They may use any means to establish and find evidence in their favour. The common law system in America uses depositions, interrogatories, and document discovery (before the trial) in order to allow for the speedy disposition of cases.. In England, pre-trial discovery is limited only to documents alleged in pleadings. The American style of pre-trial discovery is not practiced in England, where deposition-taking is usually only done through court order and in instances where the party testifying will be unable to attend the trial. The judge’s role in the American common law system is very passive. Only when he is called upon to make a ruling can his voice be heard in the court room. His role is relegated to that of referee; supervisors who will make sure that the procedural matters are followed and that the rights of the litigants are upheld during the trial. In the English and Wales common law system, the role of the judge is much more active and involved during the trial. The British judge has “more power to control the trial, to prescribe the evidence required, and to prescribe the means of its presentation” (Chase & Bruner, 2005, p. 64). The application of the American common law system allows the judge to be a part of the law, to have his decision become part of jurisprudence and precedents. In the American legal system, the selection of experts may be done by the litigating parties. In the British common law system, the selection of experts is the province of the courts. The American common law system adversely views the role of one authority dictating the direction of the trial. American society prescribes to a pluralistic ideology that allows for multiple interpretations of the truth. Consequently, the delivery of expert testimony does not solely rely on court-appointed experts, but also on other qualified experts chosen by litigants. Common law is adaptive to new changes and new societies. “[B]ecause the common law is founded on the laws of nature and the dictates of reason, even in the absence of a precedent, it is adaptable to new situations and circumstances” (Ohio Department of Natural Resources, n.d., p. 2). In the American common law system, even in the presence of precedents, common law is difficult to predict. The adjudicators may choose to follow precedents, or they may decide on a case with new legal justifications and bases very much different from precedents. The role of hierarchies in a common law system was also reduced in the American common laws system. The importance of the hierarchical system was very much valued in the British system, however where the colonies and citizens are scattered, where the government is skeletal, and where there is limited military presence, the importance of the hierarchy became downgraded in American society. “In conjunction with the revolutions, white men in America mounted campaigns against primogeniture, pomp in government, and English common law, all props to hierarchy…” (Wiebe, 1996, p. 18). Common law in the United States became a product of its environment and became adverse reactions to British common law. The American common law system now differs greatly from the British common law system. As was discussed in this paper, both systems display essentially similar characteristics; however, there have been many changes in the application of the American common law. The common law system was adapted from the British crown by the colonials and American settlers, however, the geographical landscape of the New World did not allow for a stricter monitoring of British subjects. The colonials were slowly straining away from British rule, and as a result, they favoured the more pluralistic and egalitarian applications of justice, as opposed to the centralized and judge-dominated administration of justice. American common law system is different from British common law, and yet, it is still very much under the designation of common law. It represents the adaptability of the common law system, very much in keeping with the principles of justice and equality for all. Works Cited Chase, O. & Bruner, J., 2005, “Law, Culture, and Ritual: Disputing Systems in Cross-Cultural Context”, New York: NYU Press Mehren, A., 2000, “The U.S. Legal System: Between the Common Law and Civil Law Legal Traditions”, Sapienza Universita Di Roma, viewed 10 January 2009 from http://w3.uniroma1.it/idc/centro/publications/40vonmehren.pdf Smits, J., 2006, “Elgar Encyclopedia of Comparative Law”, Elgar Publishing. Wiebe, A., 1996, “Self-Rule: A Cultural History of American Democracy”, Chicago: University of Chicago Press “Who Owns Ohio’s Stream?” (n.d), The Ohio Department of Natural Resources, viewed 10 January 2009 from http://www.dnr.state.oh.us/water/pubs/fs_st/stfs02/tabid/4158/Default.aspx Alternative Dispute Resolution Alternative Dispute Resolution (ADR) is slowly finding increasing application in the British legal system. This system settles disputes outside the courtroom and relies on the principles of mediation and arbitration in order to resolve issue between parties. “A U.K. study some years ago concluded that the demand for use of the legal system in the United Kingdom would continue to expand” (Harris, 2000, p. 1). More and more people are prescribing to this method of dispute resolution in order to avoid the rising cost of litigation and to avoid any delays in the legal process. People are also becoming more assertive in their rights, and most of them often favour settling their affairs without the intervention of their unions or employers. There are undeniable advantages to the alternative methods of resolving disputes; however, it has yet to find full support from the general population and from the members of the English government. This paper shall discuss whether or not it is desirable for ADR to have an increased role in the English civil system. It shall discuss the advantages of ADR to the British legal system, and shall provide examples exemplifying the benefits of the alternative means of settling disputes. It is desirable for alternative dispute resolution to play a larger role in the English civil system. Applying ADR to settle lawsuits and disputes before they become lawsuits offers a more expedient means of resolving conflicts. “Resolving a dispute by adversarial litigation usually involves a solicitor on each side, a barrister on each side and the judge, whose cost is covered by the court fees that the claimant has to pay” (Phillips, 2008, p. 2). In British society, the cost of litigation usually follows the losing party. The losing party usually shoulders his fees and the fees of the winning party. The losing party is also made to bear a mark-up in the legal fees know as ‘success fee’. And this adds another reason for parties wanting to opt for ADR rather than seeking formal court adjudication for their disputes. In the event of divorce and marriage disputes, mediation is much more favourable to the parties involved. “Mediation…would reduce bitterness, would improve communication between couples and would help them reach agreement” (Zander, 2007, p. 142). It is also more cost-effective for the parties involved. It has been mentioned by citizens involved in divorce and family disputes that even if mediators charge more than they usually do, the cost of mediation is still less than what would be expected from court litigated divorce cases. In the Burchell V. Bullard case, the court reiterated the importance and the benefits of considering mediation when offered by either party. Lord Justice Rix writes “The merits of the case, its structure, and the great risks involved in fighting it to a conclusion, favoured mediation, and did so at an early stage, before substantial costs began to be incurred” (2005, as quoted from Burcell v. Bullard, 2005). Burchell offered mediation at an early stage in the litigation process, but his offer was rejected, which led Lord Justice Rix to caution litigating parties to not rely on the advise of their solicitor when it is apparent that mediation is the most prudent and beneficial step to take. In the case of Halsey v. Milton Keynes General NHS Trust, the justices further emphasized the benefits of mediation and alternative methods of settling disputes. “Mediation provides litigants with a wider range of solutions than those that are available in litigation: for example, an apology; an explanation; the continuation of an existing professional of business relationship perhaps on new terms; and an agreement by one party to do something without any existing legal obligation to do so” (Rix, 2004 in Halsey v. Milton Keynes General NHS Trust, 2004). Mediation and other alternative methods of dispute resolution offer many options for litigating parties which would not have been available in court-litigated disputes. They also offer methods of settling simple legal questions between parties without dragging the case into the more formal court process. In the Dunnet v. Railtrack case, Railtrack won their case on appeal, however, because of their outright refusal to consider mediation, they were not awarded costs. The court ruled that “an unreasonable refusal to follow the courts earlier suggestion to mediate the dispute” was not in keeping with the court’s efforts to minimize the cost of litigation (Mackie, 2002). This marked one of the rare times where a party won but was not awarded the costs of the lawsuit. However, in the case of Hurst and Leeming favoured the party who refused mediation. This prompted one of the justices deciding the case to offer some guidelines in the mediation process. First and foremost, litigants should not consider why a case is suitable for mediation, instead, parties should ask why it is not being considered for mediation; secondly, litigants should consider whether a better result might be obtained from mediation; thirdly, the potential for mediation to succeed should be considered; fourthly, even if a party seems bent on not agreeing to mediation, efforts to reach such phase should not be abandoned before and during the trial; finally, if a party refuses to be a part of the mediation process, the mediator can end the proceedings and leave the parties to either proceed to court or eventually consider arbitration. (Mulcare, et.al., 2007). Various organizations and interest groups have been established in support of ADR. They offer a wide-range of options to litigants regarding the settlement of disputes and adversarial proceedings. The Advisory, Conciliation and Arbitration Service (ACAS) opine that even small and minor disputes in the workplace can develop into bigger problems or grievances if they are not resolved speedily and efficiently. And “[h]aving suitable policies and procedures to resolve workplace problems is essential for helping things to go smoothly” (Advisory, Conciliation, and Arbitration Services, n.d). The Academy of Experts also supports mediation and ADR practices. They enumerate various benefits to ADR, some of which were already previously mentioned in the cases cited above. Academy of Experts indicates that ADR is beneficial when the litigating parties have an ongoing business relationship. The organization claims that ADR works well regardless of the number of disputants and regardless of the subject matter of dispute. They also stress that ADR provides the parties a modicum of privacy during the course of mediation and settlement. Finally, they opine that “[i]t is suitable for Building Disputes, Personal Injury Cases, Partnership Disputes, Negligent Claims, Contract Disputes, Patent or Trade Mark Disputes - or indeed any dispute” (Academy of Experts, n.d). Many legal experts endorse this method of settling disputes, however they are quick to emphasize the serious considerations that must be taken into account before mediation can be chosen by the parties involved. “ADR settlements must be fair and just, to the satisfaction of both parties in dispute” (Irvine, 1999, as quoted by Kelly, et.al., 2001, p. 248). Irvine stressed that the settlement must be valid and legal and must serve the interests of both parties, and not of one party only. When these basic tenets of mediation are followed, litigating parties may leave the negotiating table not entirely losing or winning the case, but, more importantly, they will leave it as satisfied parties. One of the most important benefits of mediation and other alternative modes of settling disputes is the fact that the animosity that court lawsuits can bring to disputing parties is minimized. “You can preserve, or restore, good relationships with the other party to the dispute –you can come to feel that you are partners in a common endeavour rather than antagonists” (Phillips, 2008, p. 3). Disputing parties become active participants to their case; they are made to feel like things can be resolved by the simple expedient of talking with each other, without things escalating to cosmic proportions. Parties are also less-traumatized by alternative methods of resolving disputes (Phillips, 2008, p. 2). Court proceedings can take their toll on a person. Even when a party is not put on the witness stand, court proceedings can cause emotional stress and strain on a person’s mind and spirit. People put on the stand to narrate circumstances they are privy to suffer emotional trauma in just sitting in the witness box in front of people, and later being cross-examined by opposing counsel. And when the case goes up for judgment, the parties suffer having to wait for a favourable or unfavourable judgment. A favourable judgment does not erase the trauma of court proceedings, and unfavourable decisions exacerbate the trauma. Mediation provides a welcome relief for both parties. They may not get everything they want in the end, but mediation will spare them emotional stress and will bring them a better resolution of their issues. Alternative dispute resolution offers many advantages and benefits that court litigated cases cannot provide. Mediation and the alternative methods of settling disputes are cost-effective and less time consuming than court cases. They also offer more options and choices for parties as far as settlement alternatives are concerned. Both parties in ADR can come away from the experience with their interests protected and as satisfied parties. With these numerous advantages, it is indeed desirable for ADR to have an increased role in the English civil system. Works Cited Burchell v. Bullard [2005] EWCA Civ 358 “Disputes and Mediation”, (n.d), Advisory, Conciliation and Arbitration Services, viewed 10 January 2009 from http://www.acas.org.uk/index.aspx?articleid=1364 Halsey v. Milton Keynes County Court [2004] EWCA Civ 576 Harris, P., 20 April 2000, “Reforming English Civil System: A Market Strategy for Delivering Access to Justice”, Site Resources, viewed 10 January 2009 from http://siteresources.worldbank.org/INTLAWJUSTINST/Resources/PeterHarrisSeminar.pdf. Kelly, D., et.al. 2001, “Sourcebook on English Legal System”, Great Britain: Cavendish Publishing Mackie, K. June 2002, “Hurst v Leeming: defining ‘unreasonable’ refusal to mediate”, CEDR, viewed 10 January 2009 from http://www.cedr.com/index.php?location=/library/articles/hurst.htm Mulcare, J., et.al., 20 September 2007, “Whether or not to Mediate?...”Disputes Resolved, viewed 10 January 2009 from http://www.disputes-resolved.co.uk/stoppress/whether.html “Mediation – FAQ” (n.d), Academy of Experts, viewed 10 January 2009 from http://www.academy-experts.org/mediat.htm Phillips 29 March 2008, “Alternate Dispute Resolution”, Judiciary of England and Wales, viewed 10 January 2009 from http://www.judiciary.gov.uk/docs/speeches/lcj_adr_india_290308.pdf Zander, M. 2007, “Cases and Materials on the English Legal System”, Cambridge, UK: Cambridge University Press. Read More