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ETMA05 - Essay Example

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Question 1 Essay Plan ‘Prepare an essay plan for the question set in Question 2.’ Introduction The aim of the Introduction is to outline the key objectives and contents of the essay. This section will focus on the key points of coverage identifying and discussing the issues which a solicitor ought to consider before making a decision as to whether or not his client’s case is suitable for ADR…
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Download file to see previous pages... Under each respective heading a review of the advantages and disadvantages of litigation and ADR will be provided. The section titled “The ADR Process” will focus on exploring the issues which should be considered before making a decision whether or not ADR is suited to a particular case. This section mainly focuses on the Civil Procedure Rules 1998, particularly the overriding objective, which provides assistance in determining whether or not a case is suited to the ADR process. The section titled “Civil Trial” considers the advantages and disadvantages of litigation as a form of dispute resolution. Conclusion In the Conclusion, the findings will be summarised then an opinion shall be formed. This is in respect of what issues a solicitor should consider with a client before deciding if the case is suited to the ADR process. The conclusion refers to the main points in the Introduction and draws a close to the detailed points made in the main body of the essay. Question 2 Introduction Alternative dispute resolution (‘ADR’) is the term given to a variety of methods of resolving disputes other than by initiating court proceedings. Some examples of ADR are negotiation, mediation, arbitration, conciliation and adjudication. The various different forms of ADR vary considerably in terms of the procedure they adopt and the outcomes they are able to produce. For instance, arbitration is more akin to the court process, as it can produce a decision which is binding on the parties. Mediation, on the other hand, is more flexible in the approach which is adopted and the outcome can only be determined by mutual agreement between the parties. Irrespective of which form of ADR is used however, ADR now plays an important role in the English legal system. The important role ADR now enjoys largely results from a major review of the civil court rules and procedures in March 1994, which was carried out by Lord Woolf. The principal objective of the review was to improve access to justice, whilst reducing the costs associated with litigation, thereby making the system more lay person friendly by reducing complexities, and removing unnecessary differences between practice and procedure. The review resulted in the Civil Procedure Rules 1998 (‘CPR’), which came into effect on 26th April 1999. Albeit, even prior to the introduction of the 1998 Rules, it became apparent that ADR was going to play an important part in the new civil justice landscape. ADR is now an entrenched and integral part of the new civil justice system. The new civil justice system therefore operates on the premise that, inter alia, litigation ought to be avoided wherever possible. Where litigation is deemed necessary, however, Lord Woolf’s opinion was that the procedure ought to be less adversarial and more cooperative. ADR is a process that neatly fits into this new civil procedure framework. In fact, under the new CPR a party/person who fails to seriously consider ADR at the pre-trial stage could expose that party to a penalty at the costs stage of the litigation process. It follows therefore that legal representatives are under a professional duty to consider ADR, as an alternative to litigation, as a means of reaching an amicable settlement. Collectively all methods of resolving disputes ...Download file to see next pagesRead More
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