The Purpose and Practice of Alternative Dispute Resolution - Essay Example

A very significant development that has occurred in England in the past five years has been the extent to which ADR has overtly become part of the project to reform civil litigation. England is also increasingly looking towards the civil systems of continental Europe and examining closely the possible advantages of inquisitorial procedures, some of which have much in common with certain ADR techniques. Proposals for reform in England increasingly embrace ADR as potentially offering solutions to some of the central problems of cost and delay. As Roberts describes, ADR is attracting a wide range of sponsors, making it appear that it has the support of almost everyone.1 Judges in England are increasingly seeing ADR as a way to ease their caseloads. Government is attracted to ADR as a fruitful area for its own professional practice. This diversity of interests and motivations needs to be kept centrally in mind in any assessment or evaluation of ADR procedures and their place in civil justice. Roberts distinguishes what he calls three "lives" of ADR, in the sense that the label has become attached to areas of practice in three significantly different locations: 1. The provision of support for party negotiations at a distance from civil justice; 2. Innovative forms of legal practice adjacent to civil justice; and 3. Procedures on the threshold of the courts, which is part of civil justice itself.2 In this third "life," ADR is incorporated as part of the judicial repertoire of dispute management techniques, and it is this third "life" that is of primary concern here. In approximately the last twenty years, the U.K., like the U.S., has seen a growing number of moves to institutionalize "alternatives" to litigation, albeit on a much smaller scale.3 Important examples include the growth of mediation in family, commercial, and employment disputes.4 A range of organizations and bodies have become established that offer mediation and other forms of ADR. Examples are the Centre for Dispute Resolution (CEDR) and International Dispute Resolution (IDR) in Europe, which offer a range of ADR methods in commercial disputes, divorce cases, medical negligence claims, and other forms of dispute. Thus far, however, the volume of work remains small. Lawyers have become increasingly active in ADR initiatives in England. A number of major reports has been sponsored by the legal professions disciplinary bodies--the Law Society and the General Council of the Bar.5 The Lord Chancellors Department has set up a major review of civil court procedure by Lord Woolf, one of our House of Lords judges, with a view primarily to cutting the cost of the civil justice system. ADR and civil procedure are increasingly seen as interwoven amongst academics. They were discussed together at the 1992 annual Hart Workshop at the Institute of Advanced Legal Studies, which was organized around the theme "Dispute Resolution: Civil Justice and its Alternatives."6 A strong common theme in the various reports and reviews mentioned above has been an enthusiasm for embracing ADR into civil procedure. For example, in 1991, the General Council of the Bars Committee on ADR, chaired by Sir Roy Beldam, reported the following: "By the end of our work we were convinced that the case was made out for the courts themselves to embrace the systems of alternative dispute resolution .... We believe that ADR has much to offer in support of the judicial process."7 More recently, in 1993, an Independent Working Party set up jointly by the General Council of the Bar and the Law Society, and chaired by Hilary Heilbron Q.C., issued a report that strongly recommends the setting up of pilot schemes to experiment with court-based mediation, together with other measures to encourage the use of ADR.8 In keeping with Heilbrons recommendations, the judge in charge of the commercial list, Judge Cresswell, issued a significant practice statement, stating that the judges of the court wish to encourage parties to consider use of ADR, and will, in appropriate cases, invite parties to consider whether the case could be resolved by means of ADR.9 The Lord Chancellors Working Party under Lord Woolf has not yet reported, though a report is imminent. However, various press statements indicate quite clearly the same enthusiasm for embracing ADR techniques and procedures as part of a package of measures to reduce the costs and delays of civil litigation. Lord Woolf has been citing the success of various U.S. schemes to support his proposals. For example, he notes the system of the Court of Appeals in the District of Columbia which employed full-time mediators assisted by senior attorneys who acted without charging.10 However, Lord Woolf is also being criticized for failing to take sufficient account of moves in the U.S. and Australia toward flexible "appropriate dispute resolution" and for responding to short-term crises rather than framing long-term solutions.11 Therefore, Dispute resolution in the UK has never been more exciting, But this has not been the case always. Two decades back, "alternative dispute resolution" did not exist, and even the phrase "dispute resolution" was rarely used. The only forms of dispute resolution regularly employed were Court litigation and arbitration. On isolated occasions there might be an expert determination. All three of these procedures (litigation, arbitration and expert determination) are, of course, final determinations subject only, in certain cases, to appeals in confined circumstances. The growth of ADR in the UK over the decades is worth taking a look at. The discussion in the 1960s is predominately North American and concentrates on a widespread criticism of state institutions and the role of state. The debate seems to evolve also around the concepts of “judgment” and “settlement”.12 The discussion had a theoretical-jurispudential13 and/or a historical-comparative flavour.14 The (further American) debate in the 1970s focused on the pitfalls of litigation and adjudication and the merits of settlement.15 It also addressed the role of lawyers and has been critical of the adversarial nature of proceedings before courts and other dispute processes where lawyers were involved. The discussion acquired more structure and depth in the 1980s. The concept of informal justice was introduced, and “informalism” was explored and criticised.16 A related matter was the option of resolving disputes without lawyers or without reference to law.17 Moreover “settlement” came under fire and become the topic of extensive and seminal academic discussion.18 Finally, it appears that the 1980s appear to be the decade during which the term ADR creeps into general use.19 A further impact of the wider debate is that academic lawyers now refer to dispute processes rather than litigation or adjudication and that the word dispute has acquired a wider meaning.20 In the UK a practice direction was issue relating to conciliation in family proceedings: Practice Direction (Family Division: Conciliation Procedure) 2 November 1982.23 According to the statement a pilot conciliation was put in operation from January 1983, Towards the end of the 1980s we also have the first UK ADR institutions. Discussion about ADR in the UK was heated only in the 1990s with focus on “litigation- mania”21 and the crisis in civil justice.22 In the early 1990s two reports were published with recommendations about ADR, one commissioned by the General Council of the Bar,23 the other by the Law Society.24 At the same time a new practice direction was issued to replace the pilot conciliation scheme used in family proceedings and to reflect changes in the Children Act: Practice Direction (Family Division: Conciliation Procedure) 18 October 1991.25 In 1993, while recognising that there are certain types of dispute which will always have to be resolved at trial, such as those on which the parties require an authoritative ruling, the court decided to experiment, very tentatively, with the possibility of encouraging parties to use one of the developing methods of ADR, such as mediation and conciliation, as a possible additional means of resolving at an earlier stage of the proceedings, either particular issues arising in a case or the dispute itself.26 This encouragement took the form of a practice statement: Practice Statement (Commercial Cases: Alternative Dispute Resolution) 10 December 1993.27 Cresswell J, who was then in charge of the commercial list, indicated in the statement that, although judges in the Commercial Court would not themselves act as mediators or be involved in any ADR process, they would in appropriate cases invite parties to consider whether their case, or certain issues in their case, could be resolved by means of ADR. By way of example only, ADR might be tried where the costs of litigation are likely to be wholly disproportionate to the amount at stake. The Clerk to the Commercial Court thereafter kept a list of individuals and bodies offering mediation, conciliation and other ADR services.28 Thereafter, ADR developed as Courts took notice of ADR more and more and encouraged it by issuing Practice Statements and Guidelines. In the latter half of the 90s, ADR really picked up. The introduction of the discussion paper of the Lord Chancellors Department on Alternative Dispute Resolution in November 1999, states that This Government has embarked on the most radical program for the modernization of the civil justice system for 120 years. Encouraging and improving the ways which enable those with legal problems to avoid disputes, or to resolve them outside the court system, have an important part to play in that programme.29 Indeed significant reforms have taken place in the 1990s. First, in 1996 we had the introduction of the new English Arbitration Act30 and on 26 April 1999 the Civil Procedure Rules Civil Procedure Rules (CPR)31 came into effect and replaced the Rules of the Supreme Court (RSC) and County Court Rules (CCR). The CPR implement the changes recommended by Lord Woolf’s “Access to Justice”32 and also provides wide support for ADR. However, the growth of ADR in UK before this period is also worth documenting. In the last ten years a whole range of new dispute resolution procedures has become available. These new procedures are, generally, not finally determinative in the way that litigation or arbitration or expert determination is. The new procedures are, in effect, preliminary processes which the parties can use, if they so choose, in order to avoid a subsequent final determination by a court, arbitrator or expert. Further, these new procedures have been welcomed and adopted widely, both in the UK and abroad, because they offer to parties the possibility of controlling and reducing the particular hazards associated with the final determination procedures, namely: i. cost; ii. time; and iii. uncertainty of outcome. Thus, the rapid adoption of the new procedures has been entirely market driven. Even where, ostensibly, a procedure, such as statutory adjudication, has been imposed by the legislature, the introduction of that procedure was perceived by Parliament as meeting a widespread market need. In particular, the legal changes ushered in, in the field of arbitration and mediation has been spectacular. One of the more significant changes brought in to encourage ADR, is the enactment of the Arbitration Act 1996, which reforms and modernizes the law relating to arbitration. The Arbitration Act 1996 now provides an accessible legal framework. In the field of mediation, the Judiciary has brought in significant changes. While earlier agreements to mediate were considered agreements to agree and hence unenforceable, the decision in the case Cable & Wireless v. IBM United Kingdom Ltd33 is the latest piece of evidence to demonstrate the courts’ firm commitment to mediation. Colman J has not only quelled any doubts as to the enforceability of ADR clauses in contracts in the present climate but also took the opportunity to express his support for effective dispute resolution and reinforced the responsibility of the judge under the CPR to encourage parties to use ADR where appropriate. Read More