Do you think that the courts offer the best means for solving disputes?

 Written by James McFarland - AS Student

Introduction

There have been ways to try and improve the justice system in this country. The implication of conditional fees has helped some people and has brought many citizens access to justice.  Other ways of improving the court system was through the introduction of the Citizens Advice Bureaux and such like.  This enabled citizens to receive free legal advice from lay people and sometimes a solicitor, generally for civil cases though sometimes for criminal cases. 

There is however one way, which has helped improve the court systems, and that is through the introduction of Alternative Dispute Resolutions.  Many say this has brought many citizens access to justice whilst other claim that the court system is still the best and only way for means of solving disputes.

In this essay I shall discuss the Alternative Dispute Resolutions and analyse whether they solve disputes more easily and accessibly than our current court systems. 

What is the current way of our courts?

The current court system has improved in previous years but still further improvement to the structure is needed.  Usually going to court is the only alternative to solving disputes, but people will usually try and negotiate a settlement and will not go to court.  A good example of negotiating a settlement is when a customer wishes to return a product, which they perhaps brought from a supermarket, and in return receive a refund.  Usually in this instance there is no problem with resolving the situation and the customer will walk off with a refund for the below standard product.  There are however more serious circumstances concerned with civil cases such as divorce settlements, these can be a bit difficult to resolve with the current system as the two parties are unlikely to wish to see one another, yet again the dispute would be preferred by both parties to be resolved quickly and cost effective. 

The Court Service issues leaflets to those who are thinking about taking the matter to court stressing that if there is any chance in solving the dispute outside of court then this should be done, this is part of Lord Woolfís reform which encourages Judges to persuade parties to resolve the situation outside of the courts. 

The party defending the claim may decide that they are not willing to negotiate or do not agree with the terms of the resolution, at this stage the claimant must decide if they wish to take the matter further.  This is when the cost element starts; solicitors are asked for legal advice, and often to make the contact between the two parties. 

After negotiating with solicitors and the matter still cannot be resolved then the claimant must decide whether they wish to take the case to court.

Once a court case is started a ìpre-action protocolî is drafted for the parties to follow.  The protocol lists all of the responsibilities each party must do.  If both parties do not carry this out then a claim to the court can be made.

It can be seen that the current system of solving disputes can be an expensive one.[1]  Also the courts do not provide very good means to solving disputes outside of court, they merely provide information regarding the costs to people if they were to take the matter to court and try to encourage people to negotiate a settlement outside of court. 

In my own opinion the courts were becoming overcrowded with claims and the civil justice system could not cope with the workload.[2]  Although the Woolf Report 1999 help tremendously in decreasing the numbers of claims to the courts still more action needs to be taken in order to keep up the trend.  The new ways of solving disputes are not part of the court. 

The Woolf Report 1999 has helped in some areas of the civil justice system, for example it made the costs of bringing a claim less expensive.  This however does not mean that justice is provided.  After the Report was issued, additional alterations were required and this is when Lord Woolf started to encourage the use of alternative dispute resolution or otherwise known as ADR.

It can now be seen that the civil justice system is currently in reform and the plans are to make it easier, cheaper, less time consuming to solve disputes between citizens.

Another area where the courts have tried to improve solving disputes is by introducing tribunals.  There are many different tribunals, which are part of ADR, included in Lord Woolfís reforms.     

What are the Alternative Dispute Resolutions (ADR)?

There have been various attempts to improve the English Civil Justice System in the past 20 years, in the mid 1980ís the Civil Justice Review was created headed by Maurice Hodgkinson, the basis for this review; to establish the flaws in the Civil Justice system and it recommend improvements.  Unfortunately when the report was issued there was a large amount of negative support, mainly from those within in the legal profession as some recommendations were concerned with the rate of pay for Lawyers, Barristers and Judges.  As a result of the report the Legal Services Act of 1990 was created though only few points from Hogdkinsonís report were included.  Latter on the 1990ís, under the Conservative government, the Access to Justice Report was published also know as the Woolf Report 1994.

Lord Woolf stated that there were eight ìprinciple aimsî which the Civil Justice System should be aiming at and these were not being met.  Lord Woolf felt that the Civil Justice System (which is included in the Report) should aim at delivering fairness and justice, at a lower cost, understandable to those who use the system, provide certainty, acknowledge and respond to the needs of all people, and the system should be organised, it should not be time consuming.  These principles then formed the Civil Procedures Act of 1997, at this time the Civil Justice System is still under question.  This is where Alternatives to resolving disputes began to be encouraged by Lord Woolf.

Alternative Dispute Resolutions, or ADR, cover three main areas; Tribunals, Negotiation, Conciliation, Arbitration and Mediation. These are the fundamental principles of ADR and can definitely be seen as an advantage hen concerning the issue of Justice.  ADR encounters the problem of unfair negotiating (for example one member has a high flying barrister to represent them whilst the other can only afford advice from the Citizens Advice Bureaux).  The way ADR combats this problem would be by using a Arbitrator who is appointed by both members and who has no bias, also the decision made by the Arbitrator is final, so if the parties do not agree with the decision then a court case would be the next likely step.  This is just one example of ADR. 

Mediation 

Mediation is generally used when both parties are still on talking grounds and they both come to a compromise situation, for example in a divorce settlement the two parties may agree on joint custody of the children (there was a time when a legalisation bill was submitted regarding Divorce, stating that Mediation should be an integral part of the proceedings, though it was not carried through because is was not ìadversarialî), recently there has been a case involving Les Dennis and Amanda Holden where they recently found a compromise of having ìone dog eachî (www.opinion.telegraph.co.uk[3]).  In the past there have been questions over why court cases take so long, by using Mediation, the process is much quicker and cheaper, the only ones who lose out are the newspapers (especially when there are celebrity cases).  As the mediator is a neutral member of the party their views are not generally taken into account and this helps because then this way the Mediator can be seen to show no bias to either side.  However there can times when the opinion of the mediator can be taken, simply to resolve the matter. For example if the matter seems to be taking considerably longer than what was previously anticipated then the Mediatorís opinion could be taken into account only if it is based on the ìmeritsî of the matter. 

There are though disadvantages with using Mediation as it cannot set precedent for future cases, unlike the courts, as each matter using Mediation is seen to be based on the individual rights and wrongs of the case, though as matters are not set in precedent they can be referred to in order to settle the dispute more steadfastly. 

Conciliation

Conciliation works on similar terms to Mediation but is more considered when the parties involved are less likely to communicate with one another.  A Conciliator will suggest a compromise and sometimes the settlement between the parties and generally play a more active role.  This way of solving disputes has been questioned as the Conciliator can become biased towards a certain party due to the more active role.  Also the use of a Conciliator may not actually result in a Resolution and the matter may actually have to go to the courts.  This kind of method is likely to used over small matters regarding unfriendly neighbourly activity such as loud music all day and night. 

Negotiation

Probably the most obvious and most cost effective way of resolving disputes is by Negotiation.  Quite simply this is where the two parties get together and discuss the points of the matter.  This way of solving disputes is much encouraged by judges and Lord Woolf.  Also this way of solving disputes means that the parties involved may remain on talking grounds, which usually benefits everyone concerned.  If the matter cannot be solved through informal negotiating then the parties involved can involve solicitors to negotiate a settlement for them, this however does mean there will be a cost element but it could eliminate the amount of time taken up which is what ADR is aims for.  Although negotiating sounds good the practicality can be questioned as some matters take years to resolve and usually in these circumstances there are high costs.  This is where the other forms of ADR come in and the application of the new Civil Procedures Rules.  They are all aimed at improving the way Disputes are solved and most importantly they are time and cost effective. 

Arbitration

Arbitration is used when the two parties are really against one another and cannot even decide on a Mediator.  An Arbitrator is someone who the parties agree to submit claims to in private; there is no need for court action. There is usually a bench of two or three Arbitrators much like some court cases in the Magistrates Court.  The Arbitration Act of 1996 will select the number of Arbitrators if the parties cannot decide.  An Arbitrator is likely to have specialist knowledge in a particular area and this helps form the grounds on choosing which Arbitrator to have if the parties.  If the matter involves a serious point of law then a lawyer may be asked to represent one or both parties. 

There are some disadvantages with the use of Arbitration in that it can become expensive to the parties involved especially if lawyers are involved, and other specialists.  It could be said that the matter might as well go to a Tribunal or Court.

Tribunals

This is generally quite similar to the courts though it is less informal.  There are many different types of Tribunals ranging from Domestic Tribunals to Administrative Tribunals.  Although the theory of the Tribunals being informal is in some cases incorrect as there are some formalities in the Employment Tribunals in that contacts need to made and signed. 

It is argued that the Tribunals operate alongside the Courts and have similar tiers as the courts (Tribunal, Employment Appeal Tribunal).  I would argue that the Tribunals are an integrated part of the court system.  Lord Woolf said that Judges should encourage the use of ADR and that the Courts should be the last resort.  Also the head of the Employment Appeals Tribunal is a High Court Judge.  Also if the result of the Appeal Tribunal is disputed then the parties can take the matter to the Court of Appeal (but only on a point of law) thus bypassing the lower stages of the court system.  This then proves that the Tribunals are part of the Court structure and are respected by Judges at all levels especially as Lord Woolf introduced these changes to Tribunals.  Another reason why the Tribunals are part of the court structure is because the Lord Chancellor actually appointed the members of the Council on Tribunals[4], also Tribunals are supported by a governing body whose staff are seconded from the Lord Chancellors Department.

There have been Tribunals for nearly half a century since the Tribunals and Inquiries Act 1958 one of the earliest Tribunals is the Industrial Tribunal (latter to become the Employment Tribunal).  Sometimes tribunals were set up within organisations such the NHS where there is the recently amended Mental Health Tribunal and many others.  The Council on Tribunals has never moved off the principles upheld in the Tribunals and Inquiries Act of 1958.  It states:

Tribunals are said to be part of our ìsocial rightsî according to Jacqueline Martin[5], I would agree that it is important that people do have fair access to justice for civil cases, in order for this to happen any disputes that arise whether it be for personal and private matters or for corporate matters access to justice must be affordable and understandable to all people of our community.  However I feel that the Tribunals could still adapt to new ways for example if a matter is not resolved then it should be open to use the courts instead.   

How does Alternative Dispute Resolutions offer the best means for solving disputes?

There are many ways in which Alternative Dispute Resolution can help in solving disputes, as I have described above.  The use of Mediation, Negotiation, Arbitration, Conciliation, and Tribunals all help in bringing access to justice to all people concerned with civil matters.  Whether the matter be about private or corporate matters ADR has helped reduce the costs of going to court and so more people can find ways to solving their disputes.  Cases can now be dealt with more quickly which is a credit to ADR .  The formalities of court proceedings have been taken away so that citizens do not feel daunted by the prospect of having to go to a court room.  Another reason why ADR shows that the courts are not the best means of solving disputes is that the legal jargon is also taken away in most ADR circumstances, this makes the proceedings easier to follow for those without the legal knowledge and people are less likely to need the services of a Lawyer. 

Of course there are the disadvantages of ADR when comparing it to the courts.  One argument could be that the courts offer the best route for disputes because they have all the knowledge and the expertise whilst a private Lay Person may not.  Also if the matter is to serious then the courts may suggest that ADR may not be suitable and that a court case is the only way to deal with the dispute.  Tribunals do not have to give reasoning on their decisions and this can prove a problem if the parties wish to appeal against the decision whilst with the courts the right to appeal is mandatory, it is a citizens right to appeal the decision of the courts.  If however the parties wish to appeal on a point of law then they can go to the Appeals Tribunal. 

The Council on Tribunals does not unfortunately have the power to set precedent though it can make recommendations, this would be looked at by the Lord Chancellors Department and the Tribunals should offer the means for appeal and make the Council on Tribunals a more authorising body.

James MacFarland, March 2003

. . . . . . . . . . . . . . . . . . . . 

Bibliography

-         English Legal System by Jacqueline Martin, published by Hodder & Stoughton

-         www.opinion.telegraph.co.uk

References - footnotes