Work Place Dispute Resolution - Case Study Example

 Work Place Dispute Resolution In Halsey v Milton Keynes, the Court of Appeal held that: (1) the court cannot require a party to proceed to mediation against his will on the basis that such an order would contravene the party’s rights to access the courts under Art. 6 of the European Convention of Human Rights; and (2) to impose a sanction (and in particular a sanction as to costs) on a party who has refused to give mediation a chance, the burden is upon the party seeking the imposition of the sanction to establish that the party who refused to proceed to mediation acted unreasonably (Linder, 2008, pp. 123)1. However, Sir Gavin Lightman differed with the principles set out in Halsey and observed that: “No thinking man can but be disturbed by the imposition of the twin hurdles to mediation which the decision in Halsey creates to achieving the approximation to justice which the institution to mediation process may afford.” [Mediation: an Approximation to justice, (2007)73 Arbitration 400] (Howitt, 2008, pp.167)2. The above judgment by the Court of Appeal and the consequent differing position held by Sir Gavin are just but two of the many examples through which we can enumerate the legal dilemma involved in the issue of and application of alternative dispute resolution (ADR) in a myriad of legal proceedings. In order for us to have a concise understanding of the rubric of ADR as Lightman would have suggested being legally and amicably applicable in the realms of dispute settling, with particular reference to the Halsey v Milton Keynes case among others, it is inevitable to have a succinct definition and background information about ADR. Alternative dispute resolution is a term that has gained considerable attention in and outside many courts today. Even though it is not a relatively new term in legal proceedings, it has become an important tool in dispute resolution where parties are given the opportunity, at their own discretion, to result to other methods of resolving differences without referring to the courts as their first and only option. ADR is a term that has been widely used to refer to some broad based mechanisms that have been used to resolve disputes without involvement of the courts in full-scale. These have ranged from negotiated settlements, a process which encourages the disputants to make direct negotiations between them before they seek some other forms of legal proceedings, to the process of arbitration or minitrials that feel and look more or less like courtroom processes. Moreover, ADR is used to include processes that may be designed for community development and tension issues facilitation. The generalized categorization of ADR therefore basically includes: Negotiation Mediation or conciliation Arbitration (Pierson, 2000, pp. 89)3 Negotiation structures are designed to facilitate and encourage parties to a dispute to have direct negotiations without having necessarily incorporating a third party’s intervention. It is the most commonly used form of resolving disputes in which disputants voluntarily seek for agreements that are mutually satisfying to their common disputes under consideration. Naturally, this approach provides for the disputing parties to have ultimate control over process and the resolution arrived thereafter. On the other hand, conciliation and mediation systems are more or less similar in the sense that a third party is interjected between the disputing parties with the intention of either mediating a particular dispute or as way of their relationship reconciliation. Conciliation process involves a third party who separately meets the disputing parties in an endeavor to create some mutual understanding regarding the causes that underlie the dispute. This leads to promotion of friendlier and non antagonistic dispute settlement. In mediation, the disputants informally and voluntarily select one or more persons to act as their neutral third party that would facilitate the arrival at a settlement that is mutually acceptable between them. This may simply be done by conciliators and mediators through communication facilitation, or direct assistance in structuring a settlement, but they do not have the explicit authority to make a ruling or decide on such settlements. On their part, arbitration systems have the mandate to authorize third parties to make decisions as to how the underlying disputes are to be resolved (Linder, 2008, pp. 124)4. ADR systems are broadly divided into binding and non biding forms. Non-biding programs are those that culminate from the willingness of the involved parties who aim at arriving at voluntary agreements. These are the likes of agreements that are brought forth by the processes of conciliation, negotiation and mediation. The arbitration system may involve biding and/or non-biding conditions. Like in the judicial decision making process, a binding arbitration will produce a decision by the third party, and one which the disputants must adhere to and follow to the later even though they may be in disagreement with the outcome or the result. On the contrary, decisions made by the third parties in non-binding arbitrations are prone to disputants’ rejection. Furthermore, there are voluntary and mandatory ADR processes. In the case of voluntary processes, the parties’ will have the discretion of submitting or to refrain from such submission of their disputes to an ADR institution. In other judicial systems, litigants are required to make negotiations, conciliation, mediation or arbitration between the parties before any court action is considered (Mulcahy, 2007, pp. 102)5. There are some shared common elements among all ADR approaches and which constitutes a clear demarcation between them and the formalities of judicial structures. These elements include but are not limited to the following: Informal nature: most of the ADR approaches are fundamentally informal as compared to the judicial process. They involve much flexibility that doesn’t rely on strict evidence rules, extensive paper work and formal pleadings. Such informality is principally important and appealing for increased access to resolution of disputes especially where more formal systems would be unnecessarily costly and avoidable. This may also reduce the delays that might be involved in the formal dispute resolution processes and most of them do not require formal representations either. Equitability: ADR programs are better tools of equity propagation than the formal judicial processes that strive for adherence to the rule of law. Decisions or negotiations for each particular case are made by third parties or the disputants themselves based on the terms or principles that specifically provides for equity rather than the uniformity of statutes of the legal standards. ADR systems as such are not expected to make any legal precedent establishments and neither are they capable of implementing changes in the social and legal norms. At the expense of uniform and consistent justice, ADR systems endeavor to arrive at efficient settlements. Direct communication and participation between the disputing parties. There is presence of much enhanced dialogue with direct participation in settlement design as well as reconciliation opportunity and this provides higher confidentiality levels in the process. Moreover, there is less direct enforcement power and subpoena information all which categorically increase satisfaction and compliance rates (Prillaman, 2000, pp. 232)6. Facts about the Halsey v Milton Keynes: The claim in this case, was brought up by Lilian Halsey according to the amended Fatal Accidents Act of 1976, about her husband’s (Bert Halsey, 83 years old at the time) death on June 27 1999 while undergoing treatment at the Milton Keynes General Hospital. This claim was made due to alleged negligence on the part of the hospital. On June 25 1999, he had been transferred to the hospital with some serious several health problems and his short life expectation was not in dispute. He was receiving his nutritional requirements through a nasogastric tube, and the claim was that the wrong fitting of the tube, which directed liquid nutrition into his left lung rather than into his stomach, caused his death. A consulting histopathologist, Dr Mayers performed a post mortem examination and concluded that airway obstruction as a result of the nasogastric nutrition introduction into the lung and the airway was the cause of death due to the nasogastric tube’s insertion into the airway (Mareschal, 2008, pp. 341)7. After an inquest was held on January 14 2000, Messrs Osborne Morris and Morgan (‘OMM’), representing the claimant, wrote to the Trust informing that the family of the deceased was ready to settle for a £7500 payment for bereavement damages among the costs contribution. On 4 February the Trust replied and stated that there were instructions that they should not accept any claim to trial. OMM asked the Trust on 7 February for any probability of referring the matter to alternative dispute resolution such as mediation as way of ensuring that unnecessary costs were avoided. Furthermore, OMM sought correspondence with the Secretary of State for Health and informed of the early indications that they had requested for a meeting to negotiate and/or mediate the claim so that an agreement would be reached with minimal costs to be incurred by the NHS, but that the Trust had rejected all potential attempts. On their part, solicitors representing the Trust adamantly indicated that they had refused such offers because they believed there was no claim that would be deemed to have arisen from the care that had been provided to the deceased, to which effect they were prepared to resist any such claim and result to trial if inevitable, holding that such meetings and mediation processes would be just but mere waste of costs as well as resources. When matters could not be solved in any way other than being referred to the court, OMM stated that they would refer to earlier court decisions in related cases like in Hurst by Lightman arguing that the Trust had failed to act reasonably (Mcdowell, 2004, pp. 48)8. Eventually, despite all the attempts by OMM to seek alternative dispute resolution methods as indicated by the various appeals to the Trust’s solicitors for the same, the claim was taken to court where trial was conducted on June 1 and 2, 2003, and the judgment was ruled on June 17, and the claim was dismissed. It was observed that although there had been some several somewhat “tactical” observations that the claimant had pursued ADR, there were some possible indications that there was no way such resolution or compromise could be reached with terms that would be possibly reasonable on the part of the defendants (Mcdowell, 2004, pp. 49)9. This was the reason the defendants had suggested both parties just walk out of the litigation with neither paying their costs since they did not hold that a case of negligence had occurred in the first place, a proposition that didn’t make a good impression on the claimant’s side. The judgment thus concluded that it was not therefore necessary to compel parties who believed they had good grounds to revert to settling claims which they did not intend to settle, and which they consequently won, and that it is therefore improper to let them suffer denial of their costs. In view of the exposition, the claimant was considered as having not satisfactorily proved the unreasonable position of the defendant in refusing the mediation alternative. The court itself took the stand that it had not ordered in any way a mediation intervention and that the defendant’s was refusal was solely based on their belief that they had an obligation to their rights of access to courts as stipulated in the Article 6 of the European Convention on Human Rights, even though the subject matter of the case was sufficiently suitable for ADR. Furthermore, it was decided that the position of the defendant to hold that mediation fees would be disproportionately high in relation to the claim value in the event the liability was established and also compared to the costs that would be incurred if the Trust opted for a trial was valid. in addition, the claimant had not discharged the attempt to prove that there was reasonable prospective success in mediation, and as such the defendant was justified of the view that the claim would not succeed in the sense that it was possible the claimant would be effectively persuaded to drop the claim in the process of mediation since what she mainly wanted was a clear explanation about the real cause of her husband’s death. The logic behind this theory was that a pledge was not necessary if ADR was the best alternative for the case, and also that the Trust was not required by the pledge to accept the mediation process if ADR was not the best way to resolve the dispute. Following the proceedings of Halsey, in which the Appeal Court judges opted to gathering various opinions from a variety of expatriates before they conclusively made their decision as regarded the case proceedings, it is evident that this presents a unique case whereby excitement and anticipation of the prospects of an ADR approach are elucidated. Important principles addressing the question whether courts can compel mediation to unwilling parties as well as the factors under which courts make decisions to or not to impose punitive costs on a party who refuses to mediate have been reviewed in a number of other cases. In his objection to the principles with which the court of appeal made its ruling, Lightman postulates that common sense is struck a blow if the benefits of mediation cannot be recognized as an appropriate tool in dispute settling, and the consideration of ensuing costs from such judgments. This, he argued, should be precedent to litigation and/or ADR assumptions (Prillaman, 2000, pp. 238)10. In a number of some recent cases, courts have been more inclined to adopt ADR or rather mediation approach compellation to the involved parties, even when such parties are not willing to be bound by such dispute settling methods. For example, in Shirayama Shokusan Company Ltd and others v Danovo Ltd, the court authoritatively compelled the parties to mediation contrary to their wish. Regarding this case, Lord Dyson was of the opinion that it was an act of obstruction and denial to the right of the parties to access courts if such forceful dispute reference to mediation was allowed. Though some nations or states today have allowed their judicial systems to compel disputants to ADR mechanisms, the Halsey judgment distinctively separated courts’ encouragement to ADR’s from the forceful use of such ADR’s against the will of the parties. This expressly distinguished between courts’ compulsion and voluntary court access waiver by the disputants (Stuart, 1991, pp. 157)11. There is a general rule that is statutorily given in CPR 44.3(2) that any unsuccessful party should take the liability of paying the successful party’s costs and Rule 44.3(5) provides that the courts should vary the costs after consideration of the parties’ behavior during and before the proceedings as well as any attempts made towards dispute resolution, pursuance of any pre-action protocol notwithstanding. In the Dunnett v Railtrack case for example, despite the successful appeal, Railtrack was forced to costs liability due to the fact that they had refused Ms Dunnett’s mediation offer. The court, in Hurst v Leeming case, made significant narrowing of the mediation refusal which in effect was attributed to the success likelihood of the mediation process (Gleason, 1997, pp. 75)12. The successful party’s cost penalty principle was re-stated as a matter of exception and not as a dictating rule. Again, it was reestablished that it was the burden of the unsuccessful party to prove beyond any reasonable doubt that the unsuccessful party acted unreasonably by refusing to mediate. This culminates into the succinct understanding that mediation should be taken as a confidential process in which the court should not make any prejudgment by investigation the reasons behind non agreement in mediation. Moreover, mediation is widely recognized as a process with many avenues to solutions and is far much cheaper than the litigation process. However, it is vital to realize that ADR and mediation processes are not necessarily suitable for each and every case since they also have disadvantages just like would be expected of the litigation processes as well. In lieu of the above factors, there are a number of issues that must be put into considerations before any decision to decide whether any type of mediation refusal was unreasonable. Some of these elements include but are not limited to the following: The merits or expected benefits of the case- however watertight a party may unreasonably deem his case to be, a justification to refuse mediation would not be validated on such beliefs even though such a reasonable belief could as well be considered sufficiently for such refusal. It is therefore the jurisdiction and discretion of courts to decide whether weak cases are presented by claimants in the process tactically enticing for mediation while at the same time forcing a settlement by threatening cost penalties, like was the courts ruling in Halsey. The nature of each particular case- some disputes would demand resolution on a point of law, a binding precedent or an inevitable injunction necessity. The nature of the ADR costs, whether they are reasonable or highly disproportionate- this factor is specifically considered when the disputed sum is relatively small compared to the cost of a trial and as such mediation cannot be considered a cost effective alternative to dispute resolution. Albeit preparation and representation legal costs and advice, the parties would also be required to equally bore the mediation costs regardless of the resulting outcome, which could be a costs order subject after mediation. Whether the prospectus of success is reasonably expected in the ADR- this principle also requires an unsuccessful party to show how unreasonable it is for the other party to refuse mediation even with reasonable prospects of success through such mediation. It doesn’t necessarily require them to prove the fact that mediation would have actually succeeded but just the reasonable mediation success prospectus. Another factor to consider under this principle is where a successful party may opt to refuse mediation even a courts encouragement to do so. It would be much easier for the unsuccessful to give a demonstration of such unreasonable refuse if a court had strongly encouraged the mediation process. The extent of other disputes’ settlement methods attempts- refers to attempted offers and settlement through mediation and which courts should address to determine the unreasonable aspect in a mediation refusal. Whether possible delays in ADR set up or attendance would have been considered prejudicial- late mediation offers acceptance would imply delayed hearing (McKnight, 2006, pp. 276)13. In Hickman v Blake Lapthorn [2006] EWHC 12 case, it was also established that it was contrary to Article 6 of ECHR to make compulsory demands to disputants to use ADR but like in most of the other cases, this summary is viewed to contain nothing more than the usual obiter dicta principle. This at least arguably holds that the courts have sufficient powers with which they can use to direct disputing parties to attend to or participate in mediation particularly in the pre-trial proceeding stages (Shailor, 1994, pp. 39)14. In this respect, ADR and mediation not be seen as mere ancillary procedures but as integral part of the court proceedings. This does not mean that the parties have been required to waive their fundamental rights to courts and a fair trial. Furthermore, ADR and mediation should not be used as tools of precluding parties from court proceedings processes like is the case in arbitration agreements. At worst, they can only result in delayed trial if they end up unsuccessful, an issue that can be avoided by properly factoring in the pre-trial schedule. In Deweer v Belgium (1980) 2EHRR 439, the court was challenged as having confused arbitration with mediation by mistake, an issue that was revisited in Halsey as a possibility of a waiver in the right of a party’s access to a court. The underlying principle here was that there ought to be specifically and particularly careful review of circumstances in order to make sure that there is no unnecessary constraint that the claimant is subjected to. This statement basically held the opinion that mediation is not a kind of contradiction to Article 6 ECHR principle but is a consolidation position that waiving a court trial in favor of mediation agreements is actually in principle, compatible with Article 6 (Gleason, 1997, pp. 74)15. However, what it mainly does is call for cautious consideration in cases where such court proceedings rights are waived like in the case of arbitration as was justified in the Deweer case. Again the cost penalty is reviewed in the Carleton, Seventh Earl of Malmesbury v Strutt & Parker [2008] EWHC 424 case where the Halsey principle is extended to imply that disputants refusing mediation unreasonably can be sanctioned with costs on the part of the successful party if the unsuccessful party is able to prove any reasonable doubt that the successful party unreasonably refused mediation. This merely indicates that parties should play the role of assisting the courts in their endeavor to override objective by properly taking effective part in the ADR and mediation process (Stuart, 1991, pp. 154)16. It is the obligation of the disputing parties to consider the viability of other dispute resolution alternatives’ procedures and make reasonable conclusions about all the aspects of such process as to the effectiveness of the procedures in comparison with the litigation process. If any such alternatives are found to be superiorly suitable to the particular case than a court proceeding, then the claimant and the defendant as well must endeavor to have a consensus as to the most appropriate type they should adopt. In this respect, the court may require both parties to provide some solid considered evidence in support of their chosen dispute resolution alternative. Litigation in such cases is considered by the courts as a last resort, and provides that there should not be premature issue of claims as long as there is a continuing active exploration of the settlement by the alternative process. In addition, courts explicitly warns the parties that failure to follow the protocols to the later, such conduct would have to be referred to in the process of costs determination. In Burchell v Bullard [2005] EWCA 358, (2005) BLR 330, CA, mediation was offered by the claimant both pre and during the litigation process. However, on the grounds of the complexity of the case, this was refused, with Ward LJ referring to it as plain nonsense (Mackie, 2007, pp. 55)17. It was therefore held that the refusal to mediation by the defendant was unreasonable but no costs sanctions were imposed on condition that it was a year before the Dunnett’s case that this happened. It is not in the courts/profession’s jurisdiction to shrug reasonable mediation requests aside with impunity. On the same note, the parties were warned against future refusal to mediation on the grounds that a claim is made before mediation is proposed, and that there is no necessity whatsoever to continue battling blithely even where available alternatives may be appropriately used. In the Daniels v Commissioner of Police for the Metropolis [2005] EWCA Civ 1312, CA, after comparison of the defendant’s adamant negotiation refusal with the Halsey situation, Dyson LJ was of the opinion that defendants who opted to contest even nuisance or unreasonable claims they considered as unfounded claims should not be characterized unreasonable for costs deprivation in the event they ultimately emerge successful. In this case the defendant was considered to have acted reasonably and therefore the litigation had to proceed since the damages in consideration were viewed as disproportionate to the costs of litigation (Noemi, 2001, pp. 98)18. In conclusion, this paper has succinctly shown through the myriad cases considered that alternative dispute resolution approaches have undergone an intensive metamorphosis, posing many challenges that should be put in consideration in specific cases and in particular circumstances. More importantly, it is vivid that mediation is paramount in litigation processes and has also been shown to suit quite a variety of cases in which solutions exceeding those available through the jurisdiction of courts can be amicably arrived at as a number of recently decided cases can prove. Furthermore, the courts are now relentlessly encouraging disputants to make reasonable consideration of ADR and mediation in particular. However, even with the principle of the unsuccessful disputant costs sanctions, after unreasonable grounds for refusing mediation are proved, the courts have the discretion of making different Orders based on a number of determining factors considered before and during the process of litigation such as refusal to attempt offered mediation. It is however necessary to elicit that such conclusion cannot be pre-determined before the court decision has been made. The courts have the power to regularize and make mediation and ADR an integral component of litigation procedures, but by so doing should avoid by all means the element of forceful compellation to disputing parties to result to these ADR’s as this would constitute denial of the Article 6 of ECHR of free access to courts. Parties in dispute have also a number of factors they should put into consideration while deciding between litigation and mediation processes. Any unreasonable behavior thereafter in refusing either under favorable circumstances would be considered direct refusal to equitable justice on any refusing party. References: Gleason, Sandra (1997). Work Place Dispute Resolution: Directions for the 21st Century. Michigan, Michigan State University Press, pp. 74-77 Howitt, Richard (2001). Rethinking Resource Management: Justice, Sustainability and Indigenous Peoples. London: Routledge, pp. 167 Linder, Stephen (2008). ‘An Inquiry into Dialogue, Its Challenges and Justification’, International Journal of Public Administration, pp. 122-25 Mackie, Karl (2007). A Handbook of Dispute Resolution: ADR in Action. London: Routledge, pp. 55 Mareschal, Patrice (2008). ‘Introduction: New Frontiers in Alternative Dispute Resolution’. International Journal of Public Administration, Vol. 75, pp. 341 Mcdowell, Wyatt (2004). ‘Alternative Dispute Resolution: How Small Businesses Can Avoid the Courts in Resolving Disputes’. SAM Advanced Management Journal, Vol. 69, pp. 48, 49 McKnight, Marilyn (2006). The Practitioner’s Guide to Mediation: A Critical Analysis of Communication. New Jersey: Wiley & Sons, pp. 276 Mulcahy, Linda (2007). Disputing Doctors: The Socio-Legal Dynamics of Complaints about Medical Care. Maidenhead, Philadelphia: Open University Press, pp. 102 Noemi, Gal-Or (2001). ‘Commercial Alternative Dispute Resolution in Cascadia’. Canadian Journal of Regional Science, Vol. 24, pp. 98 Pierson, Chris (2000). Politics at the Edge: The PSA Yearbook 1999. Houndmills, England: Macmillan & Co., pp. 89 Prillaman, William (2000). The Judiciary and Democratic Decay in Latin America: Declining Confidence in the Rule of Law. Westport CT. London: Praeger, pp. 232, 238 Shailor, Jonathan (1994). Empowerment in Dispute Mediation: A Critical Analysis of Communication. Mahwah NJ: Praeger Publishers, pp. 39 Stuart, Nagel (1991). Systematic Analysis in Dispute Resolution. Westport: quorum books, pp. 154, 157 Read More