Alternative Dispute Resolution

Question: ADR is an effective tool towards resolution of disputes.
Discuss with reference to Lord Woolf??™s reforms.

Answer:

Introduction:

Lord Browne-Wikinson, former law Lord turned mediator, quoted in the Times, March 16, 2005,[1] ???In this essay told about having spent years in court reading the papers for the cases only to be told at the last minute that the parties have come to terms, I am persuaded that Alternative Dispute Resolution (ADR) is something that people ought to try first??? with the quote above, we could define ADR as any method of resolving a dispute without resorting to legal process.

History:

ADR has its roots in the United States in the late 1960s and was reinvented in the 1970s and became the fashionable development in England and Wales since 1990. Many British lawyers, notably the Lord Chancellors Mackay (conservative), then Lord Irvine (Labour) took a very active interest in this American import, as a means of avoiding the public and private expense and the private pain of litigation.

Before the Woolf Reforms, the English civil procedure has always reflected the values and traditions of the English sport of cricket, most markedly in the adversary system of justice, and not only in the sense that both are slow and boring, that is each side prepares its team for the contest, one side in turn goes into bat (address the court and call its witness) and faces the bowling of the other side (i.e the cross-examination of its witness), then the other side takes its turn at the wicket, calling its witness. Each side then has the opportunity in final speeches to make its case and unmake that of it opponent. Through out, an independent third party umpire, selected on grounds of his relative expertise and experience, watches, listens and enforces the rules and at the end of the game gives his decision to the winner.

One of the major problems with this system is that an adversarial system, where the parties are left to battle it out, uncontrolled by the court, is inherently unfair, where the parties are not equally matched in terms of resources, information or wealth, such as where a patient who suffered negligent surgery sues a health trust or a consumer sues a large company.

After centuries of complaint that the English civil litigation was an embarrassment, conducted as a lawyers??™ Dickensian game and was slow, expensive and complex, the Civil Procedure Rules 1998 were passed, in the hope that one simplified set of rules for the High court and County courts, drafted in plain English and introducing judicial case management, would rid us of some of these problems. The rules were drafted according to the recommendations of Lord Woolf, in his famous 1996 Report, Access to Justice.
These rules embodied a radically different approach to Civil Procedure from what had gone before and they are continually updated.
Among the recommendations of Lord Woolf??™s report, 1995 were other recommendations of the Civil Justice Review and the Heiborn-Hodge Report but the main Lord Woolf??™s ones were:

i. An effective system of case management by the court, instead of allowing the parties to flout rules and run the cases.
ii. An expanded small claims jurisdiction of ?3000.00 (introduced in 1996, then expanded to ?5,000.00 and a fast track for cases up to ?10,000.00.
iii. Judicial, tailored case management for cases over ?10,000.00.
iv. Encouragement of early settlement, assisted by enabling either party to make an offer to settle, replacing the system of payment into account.
v. The creation of a new civil Justice.
vi. A single set of high court/county court rules.
vii. Court appointment of single, neutral expert witnesses.
viii. Promotion for the use of IT for case management by judges and use of video and telephone conferencing.

Almost all of the above was repeated in the final report, Access to Justice in 1996, then translated into law in 1997 Act and 1998 CPR and directions as above, but Lord Woolf??™s reform focused on the fourth recommendation, which brings us to ADR.

As was defined above, ADR is a system whereby disputes are settled through any mechanism without litigation and it has two sets, which are the tribunal system and the Arbitration and ADR, where in the tribunal, the Parliament decides that certain disputes will not go to court but to alternative form while in the later, the litigants choose to use a private alternative.

Types of ADR:

ADR as seen above is open to all subjects but advisability depends on the parties attitudes and there are some of the alternatives to conventional litigation, which are:

a) ACAS: The advisory conciliation and Arbitration service, established in 1974 to trouble-shoot employment disputes.
b) Adjudication: A quick dispute resolution process designed for the construction industry to make sure work is not unduly delayed.
c) Conciliation: The conciliator takes a more interventionist role than a mediator, in bringing the two parties together and suggesting solutions to help achieve a settlement.
d) Early neutral evaluation: A neutral professional often a lawyer or judge, hears summary of each party??™s case and gives a non-binding assessment of the merits, which can be used as a basis settlement or negotiation.
e) Expert determination: An independent expert is appointed to reach a binding decision.
f) Formalized settlement conference: Described at (1995)145 N.L.J 383.
g) Mediation: a mediator helps both sides to come to an agreement which they can accept.
h) Med-arb: This is a combination of mediation and Arbitration where the parties agree to mediate but if no settlement is reached, the dispute is referred to arbitration. The mediator may turn into an arbitrator.
i) Mini trial: The hiring of an independent person to give a non binding decision on the issue. Hiring retired judges is common in the US.
j) Neutral fact finding: This is a non binding procedure used for complex technical issues.
k) Online dispute resolution: There are a number of websites offering this, usually used for low value disputes.

Examples of ADR:

ADR is not suitable for every claim, for instance, where the parties do not speak to one another, but these are few examples:

1. Family Mediation: Family mediation services have been offered, at least since the 1980s, by local authorities, charities and, by the mid-1990s by specially trained lawyers and others who were sometimes Government funded.

2. Commercial court: commercial court judges a very keen on ADR. They established a working party to examine the scope for applying pressure on litigants to use ADR. Coleman J. enforced a mediation clause in a commercial Contract in [2]Cable and Wireless PLC v IBM UK, Ltd.

3. NHS-After reports by the National Audit office that clinical disputes could cost ?4.4 billion per year, the NHS set up a pilot project to help resolve claims quickly.

4. Court settlement Process (CSP): The judges who have received extra training in dispute resolution techniques may use CSP at the request of the parties where it is felt such a procedure could achieve an amicable settlement.

5. Government Contractual Dispute: The Government in 2001 announced that it would be using ADR in its disputes, looking at this decision in policy, the department of constitutional affairs reported that in the financial year up to March, 2003, ADR had been used or attempted in 617 government disputes. It succeeded in 89% of cases, saving ?6 Million.

Funding of ADR:

Funding could be limited, but can be provided for early neutral evaluation, mediation and Arbitration and if ADR fails, the providers of the funds, like the community legal services usually need an explanation from the funded clients legal representatives.
In 2005, the government announced restructuring of legal aid to promote the resolution of disputes out of court. The same year the government launched a National Mediation help line to put callers in touch with an accredited independent mediator, for claims up to ?50,000.00 cost are fixed and low, in that same year, Minister David Lammy announced measures to refocus the civil legal aid scheme to encourage early resolution of disputes and the use of ADR.

Promotion of ADR:

ADR has been promoted through so many angles, example, the courts, in the case of [3] Frank Cowl v Plymouth City Council, Lord Woolf C.J said

???[4]Insufficient attention is paid to the paramount importance of avoiding litigation whenever this is possible??¦??¦..both sides must by now be acutely aware of the contribution alternative dispute resolution can make to resolving disputes in a ,manner which both meets the needs of the parties and the public and saves expense and stress???.

The above case is about a judicial review of the closure of a care home, with the pressure from the Court of Appeal, the parties agreed to an ADR. Lord Woolf said that courts should take a pro-active approach to ADR. In [5] Dunneth v Railtrack, it was held by the CA that a party to litigation who turned down ADR when it was suggested by the court might suffer uncomfortable consequences in costs. The commercial court gave a strong endorsement on ADR in Cable & Wireless PLC v IBM UK, Ltd (above) Coleman J., held that a contractual term providing for mandatory ADR should not generally be held void for uncertainty, for the courts to decline to enforce contractual references to ADR on the grounds of intrinsic uncertainty would be to fly in the face of public policy.
In 1993, the commercial court announced in a Practice Note that judges would encourage ADR in suitable cases and from 1996 permitted a judge to stay (suspend) a case to enable the parties to try ADR.

Benefits of ADR.

In as much as there are slow in the growth of ADR, which is mainly because of the attitudes of the practicing lawyers or their willingness to learn and know ADR, the concept has some benefits, which are time, cost or convenience, preserving or rebuilding relationships between disputants, privacy, flexibility, informality, stress reduction, the enabling of a win-win scenario, innovative solutions, greater client participation and the ownership of the process.

Conclusion:

In summary, one can comfortably say that apart from the odds of ADR, it has proved to be an effective tool towards disputes resolution as we have seen in some of the benefits above. In Lord Woolf??™s report, the Civil Procedure Rules 1998, Rule 1, placed a duty on the court as part of its active case management, to encourage the parties to use ADR, if the court considered it appropriate.
In a statement made in May, 2008, the master of the Rolls said ???[6] (e)ven now??¦..far too many people know far too little about mediation. I think we can all agree that this has to change. ADR ??¦..must become an integral part of our litigation culture.
Therefore, Lord Woolf??™s reforms, in which among its recommendation includes ADR, has helped in achieving most of the problems the Civil Procedure encountered in the past.

Biblography:

Penny Darbyshire, English Legal System, Ninth Edition
Karl J.Mackie, Handbook of Dispute Resolution, ADR in Action.
H.Carr, Alternative routes to justice
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[1].Darbyshire, English Legal System, Ninth Edition p. 261
[2] (2002) EWHC 2059.
[3]. (2001) EWCA Civ 1935.
[4] . Darbyshire, English Legal System, Ninth Edition p. 283

[5] . (2002) EWCA Civ 303
[6] Darbyshire, English Legal System, Ninth Edition p. 286