Dispute Resolution and Civil Procedure Depth of - Research Paper Example

Running Head: DISPUTE RESOLUTION AND CIVIL PROCEDURE DEPTH OF RESEARCH, COMMENTS AND SUGGESTIONS Dispute Resolution and Civil Procedure Depth of Research, Comments and Suggestions Insert Name Title Date Dispute resolution and civil procedure depth of research, comments and suggestions Abstract Alternative Dispute Resolution (or ADR) generally is the ways and means in which the different aggrieved parties come to a common understanding without necessarily going to a court of law. In other words ADR refers to a range of ways in which parties can come to terms with their grievances before seeking for assistance from a Court of Law. In a broader spectrum "ADR" does consist of different avenues that are geared towards resolution (Legg, 2007, P.7). Changes to Civil Dispute Resolution Bill 2010 and ADR Introduction The Civil Dispute Resolution Bill 2010 is meant to remove the culture of adversary that people attach to disputes so that they can think about dispute resolution. The bill demands that as federal civil proceedings begin, applicants must file the genuine steps statement in the court which shows the steps taken in resolution of the conflict. A respondent is also expected to file a genuine steps statement in response to the applicant’s statement. The respondent should clarify if it is in line with applicant’s statement. A person may be excused for not trying to resolve the conflict because of urgency or when there is a possibility of compromising the security of property. The parties will not be authorized to give confidential information which they will have acquired in their attempts to get a solution to the dispute Civil Dispute Resolution Bill (2010). Before litigation begins a party can take some steps which include: giving the other party information so that they can understand the problem and possible resolution. Trying to resolve the issue by the ADR process and carrying out negotiations are the other steps. The ADR process includes expert appraisal or mediation and conciliation. The Bill directs lawyers to give advice to their clients concerning the requirements for them to comply. The bill allows the court rules under the “Federal Magistrates Court 1999” and the “Federal Court of Australia Act 1976”to make provisions related to matters to be outlined in the statements of genuine steps and amount of time for providing the genuine statements copies CDRB (2010). Documents that two parties exchange before litigation should be protected and be used only in resolving the conflict. When there is no compliance proceedings can still continue. The court can require a party’s representative to take care of compliance costs if the conduct of the representative makes the other party to incur unwanted costs. Matters that require ADR participation before court proceedings are farm debt mediation, tenancy disputes, “common law work injury claims” and strata disputes. The changes in this Bill have the potential to bring about a better, just and effective dispute resolution. Since these changes are address the steps that warring parties need to go through in conflict resolution before taking their case before a court many will be compelled to follow this proposed law. What makes it workable is the requirement of the parties to present the genuine steps statement to prove that they have made efforts toward conflict resolution CDRB (2010). Because of this requirement more people will genuinely make possible efforts to resolve their conflicts before trying to seek the intervention of the court. Solutions to many of the disputes will be found at the level of pre-litigation and the possibility of parties agreeing is high. Many will make more effort to get to the desired solutions because they fear going through the court process which might be more involving. However a section of those with disputes may decide to drop their cases because of fear of taking pre-litigation efforts to conflict resolution. Generally the changes have a lot of good they will do to the existing law and the adversarial nature of cases and conflicts will go down tremendously if the proposed law is accepted as law CDRB (2010). Under this proposed law, lawyers will have an ethical responsibility to provide their clients with the correct and right advice they need so that they can comply with court expectations. The clients not having knowledge about legislation, will fully depend on the lawyer for this information. Lawyers will have to be honest and open to their clients so that they are not reprimanded by the court Barry (2000). They will have to do everything possible to assist their clients to obey and comply with the laid down requirements. The lawyer should not lie, defraud or manipulate the client to his on advantage. The lawyer will be expected to provide all relevant information before the court with absolute honesty. The lawyer will have to provide advice to his or her client on how best prelitigation measures can be carried out to before appearing in court. He/she must ensure that his/her client has made all the necessary efforts to solve the dispute by ADR processes. Sections of a bill on Pre-litigation practice for conflict resolution Section 1: Nature of disputes to be resolved by prelitigation The proposed law for New South Wales should have inclusions specifying the nature of civil disputes to be resolved with pre-litigation measures and the circumstances through which they should be resolved as outlined in the section below. The people who should be involved in the dispute resolution process should also be specified. a) The pre-litigation process of resolution of disputes should be carried out between 8:00 am and 4:00 pm in the evening. b) Sessions should not be held at night in whichever circumstances. This will help to ensure that there are no cases of security lapses. c) The pre-litigation conflict resolution sessions must not take place in the house of any of the parties. A neutral place should be identified where all the concerned people can meet and have deliberations under the watch of other invited people Carvan (2002). Section 2: Witnesses to be involved in resolution a) There should be at least three witnesses on either side of the conflict. This will help to bring the parties at conflict back to order whenever their talk degenerates into arguments. b) Witnesses should be neutral parties who are not friends or relatives of the two parties. This is meant to ensure that the process is fair and is carried out without bias. Witnesses should be above the age of 30 years and without questionable character. Before the parties seek the assistance of the court they should have both their genuine steps statements signed by each other. This will help in the confirmation that what each side presents contains the right steps carried out with the confirmation of both. c) The witnesses of both parties should be in agreement over the next step in case the dispute is not resolve. All of them should confirm in writing that they have agreed that the dispute should be taken to court. d) Two witnesses from either side of the dispute should be allowed to sign on the genuine steps statement as a sign of agreement to the presentation of the case in court Barry (2000) Section 3: Dispute Resolution efforts and attempts at conflict resolution a) At least 3 attempts should be made by the two parties to resolve their dispute before they seek the assistance of the court. b) Witnesses should confirm and sign in writing that there have been more than two attempts to resolve the dispute. This will ensure that parties do not hurriedly go to court unnecessarily when they can still agree if more effort is made. c) If there is no possibility of holding more sessions of resolving the conflict and yet a solution has not been arrived at then the circumstances should be communicated to the court as some of the hindrances to the genuine steps taken as the parties tried to resolve the dispute. d) If parties present contradicting genuine statement steps before the court then both of them will be compelled to go back and reconcile their reports. This may include going back to resolve the conflict again before seeking litigation for a second time Parkinson (2000). Section 4: Third parties to be present a) There should be appointed a neutral person who will be responsible for convening the sittings at any one time that the parties need to meet. This person will be responsible for facilitating the talk between the parties and their witnesses. b) The person mentioned in (a) above will act as the chief arbiter. He/she must accompany the two parties in court whenever they seek litigation and they are summoned to appear there. The current changes on the Bill are deficient in the area of pre-litigation since the parties may fail to resolve the dispute in the right manner and yet seek to be assisted in court. Transparency in the pre-litigation process has not been catered for in the proposed changes. The parties may fail to follow the right steps to resolve their conflict due to lack of discipline. The idea of timing and having witnesses is meant to ensure that the conflict does not worsen due to unnecessary arguments or verbal and physical attacks. In the proposed legislation the parties are only expected to make efforts to resolve the conflict and if necessary seek for litigation incase their efforts fail. This is inadequate since some conflicts may not be resolved yet the parties may fear taking them to court since they have not taken the required steps by law. Such conflicts can be allowed to continue on a low scale for a long time without a solution being found. The presence of witnesses on both sides will help to ensure that unresolved cases are not buried and allowed to continue without more effort to resolve them Carvan (2002). Conclusion These new proposals should be adopted in order to make the process of pre-litigation more workable. Since the proposed changes on the Bill do not provide for supervision of the process. These new changes will ensure that every little effort has been made towards conflict resolution before court redress is sought. Current legislation together with case law has deficiencies which make them unable to address all the issues of dispute resolution. Since in the current legislation there is no mention of alternative dispute resolution then it means every disagreement is directed to the courts. This creates a heavy workload for the courts and in a sense it does not nurture conflict resolution skills and attitudes among the proposal. It does not allow people to seek reconciliation on their own (2000). References Parkinson, P. 2000, Tradition and Change in Australian Law (Sydney: LBC Information Services) at 6. Carvan, J. 2002, Understanding the Australian Legal System Law book Co.: Sydney. The Parliament of the Commonwealth of Australia; Civil Dispute Resolution Bill (2010) No., 20 Australian Law Reform Commission, Managing Justice; Sydney, 2000. Barry, R. (ed.), 2000, The Law Handbook Red fern Legal Centre Publishing: Sydney Lord Justice Jackson (2009), Civil Litigation Costs Review. Final report. p345. Justice Reeves, Civil Dispute Resolution Bill (2010).Queensland Law Society ADR Conference Presentation, Brisbane, 7 July 2010. Michael Legg NADRAC, The resolve to resolve—embracing ADR to improve access to justice in the federal jurisdiction (September 2009), p 7. Read More