Alternative Dispute ResolutionEssay Preview: Alternative Dispute ResolutionReport this essayWithin the first part of my essay alternative dispute resolution (ADR) will be examined. I will have a critical look at the key types as well as their usefulness in fulfilling the objective of access to justice.
ADR represents a variety of processes all aiming to resolve disputes between potential litigants out of court. The parties agree on the type of process used and the independent third party. The main reason for adopting ADR, however, is dissatisfaction with litigation. Especially after the introduction of new issue fees that came into force on January 4th , many people are deterred from bringing their disputes to court by the financial barriers.
Colin Ettinger, President of the Association of Personal Injury Lawyers, describes the circumstances as unjust and unfair for litigants, especially those suffering from a personal injury, to fund – via fees and cost recovery – a civil court service which is meant to operate for the public good.â„-
Reducing both hearing related as well as case preparation costs, ADR is increasingly adopted to resolve civil disputes. But not only costs were a major problem of the court processes.
My concern, however, is with access to justice, and hence with reductions in cost, delay and complexity. The argument for the universal application of the full, red-blooded adversarial approach is appropriate only if questions of cost and time are put aside. The present system works well for lawyers and judges, but ordinary people are being kept out of litigation. (Lord Woolf, Access to Justice (1999)).І
As a result, Lord Woolfs suggestions were implemented by the Civil Procedure Rules 1999 and the Access to Justice Act 1999, obliging courts to encourage the use of ADR. Whereas the antagonistic and formal litigation processes constantly increase the existing conflict, ADR tries to encourage the communication and understanding between the parties by assisting them to find a solution. Moreover, it develops a wider range of solutions satisfactory to the disputants that would be outside of the ability of the court to direct as a remedy.
Perhaps the biggest incentive for businesses to use ADR is the confidentiality of the process because important information does not leak out to the public, which could cause bad publicity for both parties. Also, it is a good way of settlement for businesses wishing to continue their business relationship. Another advantage over litigation is its simpler structure and language. Solution-finding procedures and the final outcome are easier to understand for people not being used to interpret the law. This enables the disputants to actively interfere in their case, which leads to higher satisfaction with the outcome.
Having looked at the development and the general advantages of ADR I will now turn to examine the different ADR types in more detail.In arbitration, an independent third party (arbitrator) hears both sides and makes a decision to resolve the dispute. Sometimes he is legally qualified but usually he is an expert in the given field. After agreeing on the arbitrators decision, it becomes legally binding and can be enforced in court (arbitration panel). This leads to an important disadvantage of arbitration. The decision, treated like a judgement of court, is difficult to challenge under the Arbitration Act 1996. If challenged, an appeal will increase the cost and the time taken rapidly so the parties must be careful not to let a statute of limitation run out while a dispute is in an arbitration process.
Consequence of Arbitration – It has been the case of an accident or a severe misclassification of the subject matter relating to a contract with the contracting party while a new contract (the one originally entered into when the contract was initiated) was entered into with the new supplier. This is not because of a breach of contract but because of a conflict of interest which had arisen between the contracting parties that arose on January 22, 2014 and was resolved after a week or two of negotiations. The case law provides that, “even where a breach of contract is caused by one or more parties (e.g., by a misclassification of the subject matter of a contract) the arbitrator may order the other party to pay” (CITES.SAT.Laws.12.1). In the present case, the arbitrator was chosen because the parties did not agree on the terms of a new contract. They were unable to agree on the best way to solve the issue and, for reasons known to the parties (SAT.CITES.SAT.Laws 11.0.1 – 11.4.7), had to get their own way through the dispute. The two parties went to arbitration without having a contract. This provided ample time to work out what terms might be agreed upon and was not seen as a violation of contract. Therefore, the arbitrator ruled in favour of the parties who were not willing to work out terms on day one of talks and, therefore, they refused the contract on the following date (“the date of agreement”). This provided enough time for mediation that the parties settled in October of this year and a resolution was reached in October of this year. In these events, the parties did not agree on the terms of the new contract. However, the parties did agree again in November of this year (when the parties were still meeting, but without an agreement) and, therefore, in December, in an attempt to avoid an arbitration, it became the duty of the arbitrator to resolve the issue with the arbitrator before proceeding to a decision. Although the parties agreed on the terms, this did not lead to the arbitral being concluded after a week or two of negotiations. (CITESs.SAT.Laws.12.6 [17]) This provision is very important for resolving disputes before a decision is taken. It guarantees that the parties can then resolve any dispute they think may arise when the arbitrator orders a new contract (with no new contract attached). The arbitrator’s judgment determines in terms of both the arbitration rights of each party and the nature of the relationship which will result. Thus, the parties have a number of remedies they may be allowed. The arbitrator may order:
– arbitration of any arbitration claims relating to a particular subject matter of the contract; or
– arbitration of all any arbitration claims that relate to the particular subject matter or the type of arbitration that has been awarded (e.g., a standard class one contract). (CITESs.SAT.Laws 11.1.5 – 11.4.7.1 – 11.5)
However, the arbitration is held to be void except
As in arbitration, an independent third party, the mediator, is involved in mediation. But in contrast to an arbitrator, a mediator leads the parties to reach their own final decision. The mediator does that either in an evaluative way, which means stating his opinion, or in a facilitative way without giving personal remarks. The high level of communication between the parties as well as a final decision made together lead to a great reduction in conflict, which makes mediation ideal for family, workplace, education and neighbourhood problems.
A further advantage is the high settlement rate and that the parties normally keep to mediated agreements, as they have constructively worked on it rather than have a decision imposed on them.
(Data source:The mediators decision is non-binding (except when it is signed) and in the case of a failed mediation, court, tribunals or other ADR options can be