Do you think the courts offer the best means of solving disputes?

Written by Paul Gomm - February 2005.

Introduction
During this essay I will be examining which methods the courts have available to claimants when seeking compensation etc. and the best means available to solve disputes. I will therefore be looking at Litigation and Tribunals, but also the forms of Alternative Dispute Resolution which are often used before the case is taken into litigation and is sometimes ordered by the courts to be attempted before the case is able to continue. Firstly however I will be examining litigation and its advantages and disadvantages.

Litigation - What is it?
Litigation is defined as being the 'taking of a case to the civil courts'. Within this case there will be a litigants 'the person who is taking or defending a civil case in the courts' and they may also be known as litigant in person. These are 'litigants who have not got lawyers, but are representing themselves within the court case.' This may be for a number of reasons but the normal reason for somebody being a litigant in person is because it is very expensive to use a solicitor within a case and they will therefore fond it easier to represent themselves within the court case. These definitions can be found in the Complete A-Z Law Handbook 3rd Edition by Martin, J. & Gibbs, M. Hodder & Stoughton 2003.

Litigation - Advantages
There are a number of identified advantages with using the civil courts as a means of solving your disputes. Firstly, any decision made by a judge will be binding upon the parties. This means that the parties must comply with what the judge says. If he order the losing party to pay the winning party?s court costs then, as the decision was binding they will have to do so. It also means that there is a grater chance of the compensation being paid to the winning party as the court has made a binding decision, which if broken, may cause serious implications (such as bankruptcy, county court judgements and removal of items by bailiffs totalling up to the amount owed.)

An advantage which ties in with this is that judges will follow an act of precedent. This means that the judges must follow legal aspects and principles which have been previously laid down in similar cases to the one which is being tried. They must effectively stand by previous court decision, under the doctrine of binding precedent. Therefore all of the lower courts will have to follow the previous decisions which were laid down in the higher courts and the appeal courts will be require to follow what they had previously decided meaning that they are effectively bound by the own decisions.

This can also be considered to be good by the parties as it allows them to realise there chances of winning the case and also the probable amount of compensation which they may receive for there case.
Another advantage is that legal funding is available for most (with a few exceptions) court cases meaning that legal representation within the civil courts will be used. This is a greater advantage as it means that the cases are dealt with professionally and it allows for the claimants/ defendants to have a greater possibility of winning there case.

Another advantage (for smaller claimants, i.e. Individuals) is that cases heard in court are public. This would be seen as an advantage for small individual claimants as the case may give the company which they are suing a bad reputation and could therefore cause greater loss of profits towards the company and also loss of customers.

Litigation also allows for appeal routes which are accessible making them another advantage of litigation. Those claimants/defendants wishing to appeal may have the right to do so if permission is granted by the trial judge or by the court of appeal. This allows for those who are unhappy with the decision another chance for it to rectified in there favour. This may be if procedure has not been followed correctly in the original trial or if the Court of Appeal feels that there is another substantial and important reason for the case to be appealed against.

Another advantage is that there is a lot of formality within the case meaning that strict time tables, procedures and limits are set upon the case. This allows for the parties to have an idea of what to expect in there case and they are therefore able to be prepared for it when the time finally come for there case to be heard. These also comply greater with the ?track? procedure which has been set on cases. Under the ?track? procedures claims are divided into three categories - small claims, fast track claims and multi track claims. Under these conditions any case bellow £5000 will be tried in the Small Claims Division of the County Court. Cases for claims between £5000 and £15,000 will be tried within the County Court under the Fast Track Procedure Cases between £15,000 and £25,000 will be heard in the County Court under the multi-track procedure. Any cases above either this amount will be tried, most probably, within the High Court. The fast-track procedure enforces the idea of formality as when a case is heard under fast-track all cases are heard within one day and timetables will be set for the trial so that a decision can be made at a particular time. The case will also be heard within 30 weeks of the claim being defended so that there is not a great time delay as before cases were taking up to 85 weeks to be heard. It also places deadlines for submissions of evidence and expert statements.

A final advantage is that a case is heard by a judge (instead of somebody without legal qualification). This will be seen as an advantage as judges are a professional body who are experts in law and will therefore be able to decide what should happen to the case. Decisions are unlikely to vary greatly as judges will follow the previous aspects of precedent which have been laid down.

Litigation - Disadvantages
Of course there are also a number of identified disadvantages with litigation. Firstly and mainly the cost of court cases are seen as being a disadvantage of litigation. The civil courts are seen as being a very expensive method of solving disputes for the individual. Court cases may often cost more than the amount of compensation actually being sought within the case. If your case does not qualify for legal funding this can often make the case less affordable. Another problem occurs if you lose your case as you will then be made to pay the winning parties case costs as well, increasing your final costs of case up even higher. Problems may also occur if you do win as the other party may be unwilling to pay the compensation or may not be able to afford it meaning that you will have to go back through the courts to receive your compensation making the overall costs even higher and the time span even longer. This disadvantage is recognised in A Level & AS Level Law 2nd Edition by Hunt, M. from Thomson, Sweet & Maxwell 2003.

Another disadvantage recognised is Formality, which can also be seen as an advantage earlier on in the essay. The problem with court cases is that they destroy any links or relationships between the parties and make the case more complicated and complex than it should be. Parties are often going to be unwilling to co-operate with each other in the future if the method of solving the dispute is litigation as it is more expensive and pressurising upon both parties. This disadvantage point is recognised in AS Law 3rd Edition by Charman, M. , Vastone, B. & Sherratt, L. from Willian Publishing 2003.

Another disadvantage is that there is often an imbalance between parties, especially within the lower claims courts. This is because the courts encourage the parties to 'do - it -yourself' court cases as it reduces the overall costs and makes the case less complicated and is better if parties wish to continue their relationship after the case. It also means that the case is not as slow and as complicated but overall it causes imbalance and means those with out representation are at a disadvantage.

Inaccessibility has also been recognised as a disadvantage within court cases. This refers to the fact that many people find the courts an intimidating and inaccessible place and are therefore to intimidated to take up a case. This causes to people undergoing injustice as they will not willing to take up their case. The cost will also prove to be another intimidating factor as people are unsure about whether they should take up there case.

A final disadvantage with the courts system of litigation is ?inappropriateness? as recognised in A Level & AS Level Law 2nd Edition by Hunt, M. from Thomson, Sweet & Maxwell 2003. Many people feel that as the courts adversarial upon matters (each party tries to prove there case as opposing parties) instead of inquisitorial ( the court inquire and ask questions into the case) it is inappropriate for certain case matters. This would include divorce cases, family cases and cases involving welfare of children. It is therefore felt that the courts can be under certain circumstances the wrong place for the case to be tried.

ADR
Litigation is not the only means of solving a case. There is the offer of ADR (Alternative Method of Dispute Resolution). These are out of court means of solving disputes and can often be seen as the better way of doing so. Often the courts are even found to encourage the use of ADR and will sometimes halt court proceedings until a form of ADR has been attempted.

Negotiation - What is it?
This is an informal method of dealing with disputes between parties. Negotiation is conducted directly between the parties (or by the parties solicitors). It is often the first sep before litigation may be used and is designed so that court proceedings are avoided. It is designed to be a non - adversarial approach to solving disputes. The parties will attempt to come to an agreement between themselves. However if negotiation fails then the next step undertaken will be litigation.

Negotiation - Advantages
There are a number of advantages recognised with negotiation. Firstly, negotiation is seen as being the quickest method of ADR around as the two parties will simply negotiate between each other until they are eventually able to come to a resolution. If parties are willing to co-operate and reach a resolution then the negotiation may be a very quick method of solving a dispute.
Another advantage of negotiation is that it is seen as being the cheapest method of ADR. The reason for this is that there are no court costs involved and the parties simply have to agree on a place which they are willing to meet each other. There is no costs for winning parties and will not be the same need for the parties to miss work which would cause possible loss of profits. However some costs may arise if solicitors are brought in to be used within the case.
Negotiation also has the advantage of being completely private. Courts cases are public cases which may often have adverse effects upon companies where as negotiations will simply involve the two parties meaning that there is no involvement of press, etc.

There is also the greater possibility that the parties will be able to keep a relationship after negotiations. Litigation does not have this advantage.

Negotiation - Disadvantages
However there are also a number of recognised disadvantages with negotiation. Firstly, although recognised as being the quickest method of ADR this is not always true. Negotiations have been known to drag on for a period of years making them a lot longer than court cases. Even in some cases negotiations have not been settled until the morning of the trial just outside the court room. This is because parties will have been unwilling to co-operate properly with each other causing delays in the time delay of the case.

Secondly, negotiations do not always remain cheap. If solicitors are brought into negotiate the case then quite often the case will become more and more expensive. It will also make negotiations more and more difficult as the solicitors will be less willing to compromise the case and have greater interest in getting the most they can for their client.

Thirdly the decision between the parties will not be binding unless drawn up in a contract. Therefore if the parties agree on compensation then they may find they experience more problems if the parties are unwilling to pay. They will therefore have to then take their case to court in the attempt to gain compensation causing unnecessary time delays.

Mediation - What is it?
Mediation is a form of assisted settlement. In this form of ADR parties attempt negotiation, but with the help of a neutral third party (mediator). The mediator will be there to consult with each party, discover common ground between the two parties and also carry any offers between the two parties. Mediation is offered by a number of companies known as Mediation Services. An example of one of these companies is the Centre for Dispute Resolution. This company was set up in 1991 and its clients include big London City firms. Mediators are supplied through this service at a cost of approximately £1000.

Formal methods of mediation are also available known as ?Formalised Settlement Conferences?. This form involves a small trial where decision making executives of each party hear the evidence given by each party and attempt to come to an agreement between each other with the help of the neutral third party member.

Mediation - Advantages
Mediation has its advantages. Firstly it is a cheaper method of dispute resolution than litigation. There may be costs involved with the mediator but £1000, compared to possible costs of up to £100,000 will appeal more to the parties. This will help to encourage a form of resolution to be agreed.

Mediation is also less formal. Time, dates and meeting places will be agreed by the parties and the whole process will feel a lot less intimidating compared to a court case. This is a good advantage to individuals without legal experience as they will find it a lot easier to co-operate between each other.

Mediation has another advantage as it is seen as being quicker. It does not have the long time delays which a court case has and will therefore be a better option for parties who wish to get the matter resolved sooner rather than latter. Court cases are known to drag on for long periods of time making them more difficult and long winded especially if the case concerned is complicated.
Privacy can also be seen as another advantage of mediation. Mediation, alike Negotiation is conducted between the parties and the third neutral party making the case private. Nobody will need to know that a mediation case is going on and therefore the press will not be involved. To companies this would be a particular advantage as it means that they will not receive bad publicity from the case which could result in possible loss of profits.

Mediation can also help to keep a reasonable relationship to continue between the two parties. They will not be involved in court action and if the mediation case is settled and both parties co-operate in a reasonable manner than there will be a greater chance of a relationship continuing between the two parties. This is especially important in divorce cases as the parties will not want to cause to much hatred or dislike between each other.

A final advantage of mediation is that it uses a mediator who will be experienced within the subject which is trying to be resolved. This helps the parties to reach a reasonable settlement between each other.

Mediation - Disadvantages
Of course with advantages, comes disadvantages. One disadvantage is that mediation is entirely co-operation based. If the parties are unwilling to co-operate between each other then mediation will prove to be useless even with the help of the neutral third party member. This disadvantage links in with the fact there will be no guarantee of an agreement causing the parties to have to go to the courts to settle there dispute which leads to heavier costs and means that the mediation which the parties went through just caused added time delays in the resolution of the dispute.

A further disadvantage is the fact that many people may decide that they have not got the time to resolve their dispute and therefore call on the help of solicitors in coming to an agreement. This cause for added costs to be raised and will mean that mediation will not necessarily have been very cheap, especially if the case drags on for a long period of time. Add the solicitors costs to the costs of the mediator and mediation can become a lot more expensive than was originally thought.
The final disadvantage of mediation is that it is not a binding decision and therefore the parties may be unwilling to pay whatever the settled arrangements have been. This is problematic and as the decision is not able to be forced through the courts (unlike arbitration) the parties may end up chasing up each other for their compensation.

Conciliation - What is it?
Conciliation is very alike mediation in the way that the parties attempt negotiation but with the help of a neutral third party. However the way in which conciliation differ is that the neutral third party member plays a more active role in the negotiations by suggesting possible settlements for the dispute & grounds for compromise, also the conciliators opinion on points and ideas involved within the discussion. There are now Conciliation services available as well, alike mediation. One of the main conciliation service is ACAS ( The Advisory, Conciliation and Arbitration Service). These are used often in employment disputes. Whenever claims are issued to do with this subject then a copy of the form will normally be sent to ACAS. ACAS will then issue a conciliation officer to offer assistance with proceedings and try to help resolve matters before an employment tribunal is needed.

Conciliation - Advantages
Conciliation is very similar to mediation and therefore most of the advantages and disadvantages are the same. A main advantage of conciliation is of course the cost. Conciliation is a lot less expensive than going into litigation making it a popular choice for companies and individuals who wish to attempt to settle a dispute. The only position where costs may possibly arise is from the conciliators costs and if solicitors are used within the case to negotiate on the clients behalf.
Secondly, the conciliator plays a much more active role in the case. This is an advantage as it means that the case is more likely to be settled than mediation as the conciliator will be placing forward possible options for agreement.

The formality of the case is also an advantage. The case will be mostly informal as it is not a tribunal or court hearing. This means that often parties feel a lot less intimidated when it comes to taking on conciliation and will find the experience a lot less stressful and inaccessible than a court case. They may therefore find it easier to come to a settlement over the dispute.

The use of conciliation also means that there is a lot more chance of the two parties keeping up a relationship after the case. If it was the case of an individual and a business, it may be a lot more useful if the individual is able to maintain a business link with the company after an agreement has been made.

Finally privacy will come in as a good advantage of conciliation as parties may wish to keep the case private without the involvement of the press which could give them a bad reputation and a bad name. This may be especially true in the case of a company who will not want to lose customers or possible future customers.

Conciliation - Disadvantages
Conciliations disadvantages do not differ greatly from that of mediation. The main problem with conciliation is that it is once again a co-operation based negotiation. Therefore if the parties are unwilling to resolve the dispute and co-operate with each other and the conciliator then there is very little chance the case will be solved and it will therefore have to be referred to the courts.
Secondly, there is of course no way of enforcing the agreement as it is not a binding decision. This is different to the courts where they have a number of different ways to enforce an agreement. Under many of the forms of alternative dispute resolutions there is no means to enforce the agreement, apart from arbitration where there is a possibility of enforcing the decision through the courts.

Finally costs and time delays can be a contributing disadvantage with conciliation. There is no set time limit and therefore it is impossible to tell how long discussions may continue for. Also there are added costs to the resolution process such as conciliators costs and also the possible solicitors costs which may be used in the process on behalf of their client.

Arbitration - What is it?
Arbitration is a more formal method of alternative dispute resolution. If parties agree to go into arbitration then their case will be heard by a panel of up to three arbitrators. The arbitrator/s will be chosen by the parties. They are often experienced in the subject which the dispute is arising from. They will therefore be technical experts in a field of expertise. There are some informal sides whereby the date, time and place are decided by the parties. The role of the arbitrator is to make a final decision upon the case and make an award. There are two types of arbitration hearings which the parties may choose from. They are 'paper' arbitration - where parties send in all evidence and documentation to the arbitrator who then makes a decision base on what they have seen or a more formal hearing whereby witnesses are called and each party makes an oral presentation as well.
Arbitrators will most commonly be a member of the Chartered Institute of Arbitrators. Arbitration is normally found in three different ways. Firstly Commercial Arbitration. Commercial Arbitration is where a company/organisation contains an arbitration clause (known as a Scott v Avery Clause). If a contract has been signed which has a Scott v Avery clause then any complaint which may have been settled in the courts will have to go to arbitration instead. The idea of using this clause is that it will avoid expensive costs, time delays and a bad reputation which often occurs through litigation.

The second type of arbitration is Industrial Arbitration. Industrial Arbitration refers to most employment disputes. When an employment dispute claim is filed then a copy will be sent to ACAS who may request that the parties attempt arbitration so that they avoid the costs and disadvantages of litigation.

The third type of arbitration is Consumer Arbitration. A large number of trade association offer an arbitration scheme which can be used as an alternative to court proceedings (i.e. Litigation).

Arbitration - Advantages
Arbitration has a number of recognised advantages. Firstly, the decision is in most cases final and if wished may be enforced through the courts to guarantee that the award is paid. This is good as unlike the other methods of ADR there is a greater possibility that a party will receive there compensation granted by the arbitrator.

Another advantage is that the case will be heard by a 'technical expert' in a field of expertise. This will insure a more fair trial as the arbitrator knows the subject well and will have an idea of if there was a problem. It also allows for the use of witnesses which may also help a party state their case.
Arbitration also allows for a choice of up to three arbitrators to hear a case. The parties are allowed to choose the arbitrators between themselves making the process of arbitration a lot fairer and causes less bias. Parties may opt for the use of technical experts, lawyer, business people ,etc.

The formality of the case is another recognised advantage of arbitration. It allows the parties to decide between themselves the time, place and date of when the arbitration should take place. This places the parties under less intimidating factors and makes the idea of arbitration seem less inaccessible. It also means that the parties will not have to take time off work to make their case heard.

This advantage ties in with the idea of flexibility as the parties have a choice of paper arbitration or formal arbitration. This makes arbitration seem more flexible and less inaccessible to parties.
The cost and speed of arbitration can also be an appealing advantage when deciding where a case should be heard. As arbitration is a form of ADR the cases are often a lot less expensive than taking a case through the courts. It also means that the case does not undergo the same degree of time delays as a case being heard in court. This will often make parties choose a form of ADR as they know that proceedings are less likely to drag of, especially under arbitration where a decision is definitely going to be reached by the parties.

The final advantage of arbitration is that it is private. This will be appealing to people especially if they do not want there case being publicised about in the media. This would therefore be especially promising to a company.

Arbitration - Disadvantages
Of course with advantages, comes disadvantages, and arbitration has a number of these. Firstly there is sometimes a bias which can be seen in Commercial Arbitration Hearings. Because of the Scott v Avery clause the arbitrator within the hearing will be being employed by the company who has made the clause meaning that they will be sympathetic to the companies situation (especially because the company is paying their fee). Therefore this may often cause a bias and an injustice upon the other person involved within the arbitration hearing.

Secondly there is the possibility of unexpected legal points arising during the arbitration hearing. If the case is not being heard by a lawyer then they will be unable to answer any of these points causing further delays and problems during the case. Therefore it is probably quite essential that out of a panel of three arbitrators there should be a solicitor / academic lawyer upon the board who has specific knowledge about the law.

Thirdly there are limited rights of appeal from the arbitration hearing meaning that if one party is unhappy with the award passed by the board of arbitrators then it is often difficult for them to appeal against these decisions which have been passed.

One final disadvantage of arbitration is that although the hearings are low in cost and reasonably fast, this is not always true. Often added expenses will occur if a professional arbitrator from the Chartered Institute of Arbitrators is used and if the case uses lawyers or witnesses. Delays will also occur from professional arbitrators and lawyers as often they may be booked up for a certain period and the parties will have to wait till there next available time slot.

Other Types (Tribunals)
Tribunals are offered by the courts as an alternative means of resolving a court case. They are less formal than a case taking place within the courts. Tribunals will be heard by a panel of three members: a legally qualified chairman and two lay people. These lay members will have a particular expertise in the field of the case. There are no formal rules of evidence or procedure however natural justice rules will apply. Often parties are encouraged to bring a case of their own and should not use lawyers. The panel will make a decision on which party they think deserves to win. There are three types of tribunals; employment tribunals (covering all work related disputes), administrative tribunals (tribunals created to enforce rights which have been granted through the social and welfare legislation) and domestic tribunal (used within professions to determine questions about professional conduct, these include The Bar Council and General Medical Council).

Tribunals - Advantages and Disadvantages
The court ?side? system of tribunals however has a number of advantages and disadvantages. Firstly the cost effectiveness of tribunals. Tribunal applicants are encouraged to represent themselves as it reduces the cost of the case. This is good for individuals however if the other team are represented then often the client without representation will lose their case. Therefore this point can be seen as both an advantage and a disadvantage.

Tribunals are usually dealt with in reasonably fast speed which makes this an advantage. However recently this is becoming less true because of the vast workload which is placed upon the tribunals. It is also not helped by the fact that lay magistrates sit part time making the time delays even greater. An extreme case of this was the case of Darnell v UK (1993). In this case a doctor was dismissed for practising in 1984 and filed for unfair dismissal. The case was not finished until 1993. Once again this can be seen as a advantage but mainly a disadvantage.

Simple Procedure is the final advantage/disadvantage. In this case often tribunals are referred to as being informal due to their nature. However this is not true to employment tribunals which are much more formal. Procedures may be simpler than courts however for individuals without representation this is not true as they will often not understand the time limits and procedures set.

The Woolf Reforms
The reason the process of litigation has been improved is due to a number of acts. Firstly the Woolf Reforms brought into effect in April 1999 along with the Civil Procedure Rules 1999. The Woolf Reforms established the use of Fast Track cases and Multi Track cases. It also encouraged the use of ADR and simplified document and Procedures for rules governing the County Court and the High Court. It also recommended the use of short timetables for trial length. These reforms helped to make the Civil Courts a better place to solve disputes.

The Civil Procedure Rules
These also helped to make the civil courts an easier and simpler step into resolving dispute. The rules helped by making sure that parties in cases are on 'equal footing' and that the case is dealt with fairly and quickly. The main way it helped though was by making the procedures and rules easier and simpler to understand by changing terms and language into more modern day meanings. The main example of this is that the 'plaintiff' is now known as the 'claimant'.

Conclusion
Overall I think that the courts do offer good means for solving disputes through litigation. This is mainly because legal funding is available and the decision is binding and final. However I do not feel that the system is right for everybody and therefore understand that ADR can sometimes be the better option. I feel that whatever the case it should begin automatically with mediation supplied by the courts and that it should be given a limited period by which it must be completed within. If it is not then it would be acceptable for the case to go to court. I also feel that Scott v Avery clauses should not be allowed as many people will not understand what they are in the contract and will therefore sign up under false pretences.

Paul Gomm (Feb 2005).

Bibliography
The English Legal System 3rd Edition by Martin J. Hodder & Stoughton 2002
AS Law 3rd Edition by Charman M., Vanstone B. & Sherratt L. Willian Publishing 2003
A Level & AS Level Law 2nd Edition by Hunt M. Thomson, Sweet & Maxwell Publishing 2003
A-Z Law Handbook 3rd Edition by Martin J. & Gibbs M. Hodder & Stoughton 2003

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