Legal Issues in Court Trials - Essay Example

?Question Essay Plan The essay plan for this Essay has been constructed into three separate structures. Following are the structures of the Essay: a) Introduction b) ADR c) Litigation d) The introduction defines the concepts which are going to be explained in the essay. It is not more than 100 words and focuses solely on defining the reader what the writer is going to talk about. ADR is one of the subjects of discussion, and the writer starts which the explanation of ADR which also includes the definition of the same. After having explained the concept, the writer further dwells into the understanding and the functioning of ADR. He argues the advantages and the disadvantages of ADR. It also involves the study of different types of ADR and their functions with regard to the settlement of the disputes. The writer has given a brief explanation of each and every type of ADR and their different approached towards the settlement of disputes. The writer in the third structure talks about Litigation which is also known as Court Trial. Over here he defines and explains what we really mean by Court trial and how it functions. After having discussed the brief functions of Court Trial, the writer then dwells on the advantages and the disadvantages of Court Trial. The writer goes deep into the advantages and disadvantages of Court Trial and concludes with the same.Question 2 Question 2 Court Trial and ADR Introduction In Halsey v Milton Keynes General NHS Trust, the Court has the following observation: “All members of the legal profession who conduct litigation should now consider with their clients whether disputes are suitable for ADR” In the light of the above arguments, we shall be discussing the differences between Trial Litigation and ADR, whereby we shall understand the advantages and disadvantages of both the forms of legal counselling. Alternate Dispute Resolution Alternate Dispute Resolution, (hereinafter known as ADR), is the practice where the lawyers opt to go out of the Court and settle the dispute through an Arbitrator who presides over the matter. It is a common practice nowadays and lot of people are now opting to go for ADR rather than taking up the longer and more tiring process of litigation. It is method in which the disagreeing parties agree to settle their disputes before the Arbitrator of their choice, where the main aim is to avoid the lengthy process of litigation. Despite a lot of negativity having been spread about ADR in recent years, the fact remains that ADR is now the most sought after mode of settling disputes and due to its simplicity it has become the major force to reckon with for lawyers. It was held in the case of Halsey v Milton Keynes the following: “the courts will not refuse costs to a successful party unless it was shown that the successful party acted unreasonably in refusing to agree to ADR. The normal order of costs made to the winning party (costs follow the event – crudely stated “the winner takes all”) would not apply if the successful party acted unreasonably.” Understanding the point of view given in the above case, it can be inferred that the Courts made it clear that it would not obligatory on the part of the parties to opt for Arbitration; however, in the same proposition Courts do feel that the parties should try their utmost best to opt for ADR in settling the disputes. ADR can be divided into two types. The first form of ADR is resolving and settling disputes outside the official judicial mechanisms. The second form of ADR is to resolve and settle disputes informal to official judicial mechanisms. It involves the informal tribunals and informal mediation processes as well as formal tribunals and formal mediation processes. Let us discuss the forms of ADR before we move further. ADR consists of the following means: a) Arbitration b) Mediation c) Conciliation d) Negotiation All these forms of ADR are extremely popular within the legal profession. Arbitration is the form of settlement of disputes where the matter is given to an independent party for the settling of the disputes. It is the voluntary submission to judge who then takes up the matter in a private sphere and decided upon the same. The Arbitrator decides on the judgment which is binding on both parties. Arbitration is extensively used in commercial disputes, more so in international commercial disputes. It also used in consumer and employment matters, where there is usually an arbitration which is mandated by the employment or consumer contracts. Mediation is the form of ADR where a neutral mediator helps the parties’ compromise to a solution to their problem. In Mediation the mediator has the responsibility of communicating the parties the problems and is duty bound to formulate the solutions to such problems while keeping confidentiality between both parties. The mediator focuses solely on the parties’ interest and strives to achieve a solution which lies in the interest of both parties rather than going all out for a legal solution where one of the parties stand out to be a loser. In Mediation both parties are ‘winners.’ Mediation is only suitable for those parties who think they can cooperate with each other in order to resolve and settle the disputes amicably. It involves the smoother resolution of disputes and requires the parties to have faith in each other to come up to a solution. Conciliation is the process of settling disputes similar to the lines of Mediation, however in conciliation the third party which is neutral in mediation plays a more active role in the process of conciliation to the effect of mandating and amending the thoughts of the parties and playing a strong role in suggesting ideas to resolve and settle disputes with each other amicably. The Conciliator is expected to give grounds for compromise and possible basis for settlement. The parties seldom face each other across the table in conciliation as opposed to mediation. The resolution process is faster and less costly and also involves the direct involvement of the conciliator as opposed to mediator. Negotiation is the process where the lawyers of both the parties negotiate between themselves on behalf of the clients to come up to a conclusion with regard to the settling of the disputes. Even when the Courts are in the process the parties try to negotiate through their lawyers and arrive at a settlement. This process is a way simple in nature than the usual form of litigation and therefore involves less time and money. The lawyers of the parties negotiate to decide the dispute amicably for the betterment of both the parties since everyone realises the extent to which a litigation process can go. ADR has a lot of advantages and disadvantages; let us study the advantages first. First and foremost comes the suitability of multi-party disputes and flexibility of procedure. It is a cheaper form of dispute resolution as opposed to litigation which is the more prevalent form of dispute resolution. It is a much faster process than litigation and involves the settlement of the issues in a quicker manner. ADR usually is less complex in nature and therefore requires less time to be adjudicated upon. ADR avoids negative publicity and is a private affair of settlement of disputes. On most occasions it is less stressful than a Court case. The dispute is always settled by an expert. The disadvantages of ADR lie in the fact that there could be an imbalance of power which could be tilted in the favour of one of the parties. In such circumstances face to face mediation might become tough to execute. The settlement and the agreements which are arrived at usually do not act as precedents for future ADR mechanisms. The decisions imparted by the Arbitrator or the Mediator are given in full privacy and confidentiality of the parties and therefore such decisions are not published in the public domain. Due to such forms of settlements these decisions cannot be used as solid forms of precedents for future ADR cases. Theories and ideas such as legal rights and Human Rights have no binding effect on the adjudication of disputes in ADR process. It is a pure commercial and professional form of adjudication where the simplest of procedures are enacted and the Arbitrator usually does not entertain human rights or the concept of legal rights in the process of ADR. Court Trial Court trial is the process where the matter between the parties is heard within the four walls of a Court presided by a single or a number of judges who adjudicate upon the dispute and announce their judgments which is published in public domain. It is also known as litigation and involves the settlement of disputes before a Judge who is authorised under law to proceed to adjudicate the proceedings. It is a civil action which is brought to a Court of Law where the Plaintiff who has suffered from the actions of the Defendant demands a legal remedy from the Court for such actions of the Defendant which have harmed the Plaintiff. In a Court Trial, the party who has suffered is known as Plaintiff and the party against whom the allegation has been alleged is known as the defendant. In the process of the trial court, the matter is usually sent to the court by the party which is affected by the actions of the defendant. In this procedure of trial, the parties stand against each other and both the parties oppose what the other party has to argue about. Litigation is a very lengthy process but on the same hand it is much more stable than ADR and therefore has been continuing for so long. It is the process where the parties argue against each other and there is only one winner in this form of settlement of disputes. A lawsuit may involve the resolution of dispute between private parties or business households, governments or other individuals. It is a very comprehensive process and allows for any type of dispute resolution through the action of the Court with regard to any matter involving any sum of money. Let us now analyse the advantages and disadvantages of Court Trial. The advantages of Court Trial include the stability of the process of dispute resolution. It is the most stable form of dispute resolution and the parties to the dispute have to abide by its order. The decisions given by the Judge are published in public domain and are not hidden from the general public. Apart from this, the decisions also have a precedent attached to them, so when a case comes in the future which has similar issues to a case adjudicated by the Court some time back, the Judge of the current case can take help from the principles of law which were enshrined in the previous judgment and thus borrow such principles to apply in the current case. It is a very streamlines mechanism and therefore does not sponsor any glitches to that effect. The disadvantages of Court Trial involve the length of time to which a case can go. This has been the biggest problem with litigation. A litigation process is a very time consuming process and therefore can stall business and other activities of the parties to the dispute. Another disadvantage of litigation is that it is a very hostile way of settlement of disputes, where the parties are standing against each other and are opposing whatever the other part says, thus allowing for negativity to breed in amongst them for each other. It is not an amicable form of dispute resolution. Question 3 I have used my essay writing skills to the optimum effect. Having studied the principles of litigation and ADR, I have applied my skills set in such a manner where I have been able to demonstrate the negative and the positive effects of both form of dispute resolution. My skills lie in understanding the information which has been imparted in my mind and applying techniques to impart the same information on the paper and explain it according to my understanding of the subject. After reading the information given in the supplement, I have been able to understand the core aspects of Litigation and ADR, and through this understanding of the topics I have been able to think and further exploit on the subject so as to arrive at the very comprehensive form of study for the subject which involves my analytical skills as well as writing and explanatory skills. Works Cited Readings 19 and 20: Verkaik, R. et al. ‘Focus: Commercial alternative dispute resolution’, Law Society’s Gazette, vol. 94, no. 42, 5 November 1997, The Law Society Reader 2. 1st ed. United Kingdom: Hobbs the Printers Limited The W100 Team, 2007. Block 4 Adjudication. The Open University, W100 Rules  Read More