'Do you think that the courts offer the best means of solving disputes?'
Written by Charlotte Langridge
Introduction
Civil disputes between people have existed for hundreds of years, thus there have always been important decisions that need to be established. The title of the essay concerns whether or not the courts offer the best means of solving disputes; implying that perhaps there are other alternatives. I shall discuss the following alternatives in detail to enable a clear answer in my conclusion. I believe that the alternatives to courts are Alternative Dispute Resolution (ADR), Tribunals and Ombudsman.
What are the disadvantages with solving disputes at court?
Courts can be very useful in some cases, especially if the parties have exhausted ADR due to lack of co-operation etc. However, court hearings are not always the best methods of resolving a dispute, and their disadvantages mean that for some types of problem, alternatives. The main uses of alternatives are in family, consumer, commercial, construction and employment cases. However, following Lord Woolf’s reforms of the civil justice system, these alternatives should play a more fundamental role in solving all types of civil disputes.
The Adversarial process
Naturally, a trial necessarily involves a winner and a loser, and the adversarial procedure combined with often aggressive atmosphere of court proceedings divides the parties, making them end up enemies even where they did not start out that way. This is an obvious disadvantage, especially when there is a reason for the parties to sustain a relationship after the problem under discussion is sorted out – child custody cases are the obvious examples as it will cause problems for a child if their parents are at loggerheads. Therefore, many claim that the court system is best suited to areas where the parties are strangers and happy to remain so.
Technical cases
Some types of dispute rest on detailed technical points, such as the way in which a machine should be made, or the details of a medical problem, rather than on points of law. Where detailed technical evidence is at issue, alternative methods of dispute resolution can employ experts in a particular field to take the place of a judge.
Inflexibility
In a court hearing, the rules of procedure lay down a fixed framework for the way in which problems are addressed. This may be inappropriate in areas which are of largely private concern to the parties involved. Alternative methods can allow the parties themselves to take more control of the process.
These are only some disadvantages of solving disputes through the courts. These alone suggest that alternatives could be a better option. I shall now consider ADR and discover whether these alternatives are better than taking a case to court.
What are the Alternative Dispute Resolutions (ADR)?
In the 1990s there were many moves to encourage the use of ADR, for example the Woolf Report included more use of ADR as one of its recommendations. As a result the 1999 Civil Procedure Rules allow judges to ‘stay’ a court proceeding, (stopping the proceedings temporarily), so that the parties can try mediation or other ADR methods. ADR covers five main areas: Tribunals, Negotiation, Conciliation, Arbitration and Mediation. These are the fundamental principles of ADR and can definitely be seen as an advantage when considering the issue of justice. ADR encounters the problem of unfair negotiating – for example one party has a respected barrister whilst the other party can only afford advice from the Citizens Advice Bureau. ADR is in place to combat this type of occurrence. For example with Arbitration the parties can employ an arbitrator who has no bias. The arbitrator is also there to make a final decision, so if the parties do not agree with the decision then a court case would be the next likely step. This is only one example of ADR.
Mediation
Mediation is a modern form of dispute resolution which is quite informal and is an attempt to bring the parties together to find common ground with the help of a neutral mediator. The role of the mediator is to consult with both parties in an attempt to calm the situation and establish what the best course of action to take is. He/she will explore the position with each party, looking at their needs and carrying offers to and fro, while keeping confidentiality. A mediator will not usually tell the parties his/her own views of the merits of the dispute; it is part of the job to act as a facilitator, so that an agreement is reached by the parties. However, mediation does require a degree of co-operation between the two parties to enable mediation to be effective. Companies who are used to negotiating contracts with each other are most likely to benefit from this approach. Fundamentally, mediation allows parties to be in control – they make the decisions.
Conciliation
Conciliation is similar to mediation in the sense that there is a neutral third party involved. Conciliation involves bringing the parties together in an informal setting to try and find a way, which their dispute may be resolved. The major difference between mediation and conciliation is that the conciliator will take a more active role by discussing/suggesting grounds for compromise, and that possible basis for a settlement. In industrial disputes ACAS can give impartial opinion on the legal position. As with mediation, conciliation does not necessarily lead to a resolution and it may be necessary to continue with a court action.
Arbitration
The word ‘arbitrator’ is used to cover two quite different processes. The first is where the courts use a more informal procedure to hear cases. The second meaning of the word ‘arbitration’ is where the parties agree to submit their claims to private arbitration; this is the type of arbitration that is relevant to alternative dispute resolution, as it is another way of resolving a dispute without the need for a court case. The agreement to go to arbitration can be made by the parties at any time. Many commercial contracts now use what is called a Scott v Avery clause; this is a clause where the parties in their original contract agree that in the event of a dispute arising between them, they will have that dispute settled by arbitration. If a Scott v Avery clause was used in a contract, then the courts will usually refuse to deal with the dispute, perhaps adding to the involuntary nature of some arbitration cases. Although there is a choice given to the parties whether to sign the original contract, so the word ‘involuntary’ is therefore justified. The rules governing arbitration are set down in the Arbitration Act 1996. This act states that the parties are free to choose the number of arbitrators, the procedure for appointing the arbitrator and most importantly who the arbitrator is going to be. The parties also have the right to decide the procedure of the actual hearing and decide whether any witnesses will give evidence.
Negotiation
When two people are involved in a dispute, there is always the option of negotiation. Negotiation simply involves the two parties coming together to discuss the dispute. This particular way of solving disputes is encouraged by Lord Woolf and many judges. This has the main advantage of being completely private, and is also the quickest and cheapest method of settling a dispute. If the parties fail to come to an agreement, they may decide to take the step of instructing solicitors, and those solicitors will usually try to negotiate a settlement. Obviously, once lawyers are involved, the costs are likely to rise considerably. One of the major concerns is the number of cases that drag on for years, only to end in an agreed settlement literally ‘at the door’ on the morning that the trial is due to commence. 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.
Tribunals
Tribunals are another form of Alternative Dispute Resolution and work alongside the court system and have become an important and integral part of the legal system. However, unlike Alternative Dispute Resolution where the parties decide not to use the courts, the parties decide not to use the courts, the parties in the tribunal cases cannot go to court to resolve their dispute. The tribunal must be used instead of the court proceedings. It has been argued that tribunals are too similar to the court system as they are divided into three separate tiers (Tribunal, Employment and Appeal Tribunals). This brings the attention to the recommendations of Lord Woolf. Lord Woolf has stated that judges should encourage the use of ADR and that the courts should be the last resort. The fact the head of the Employment Appeals Tribunal is a High Court judge proves that the two systems overlap. Furthermore, if the result of an Appeal Tribunal is disputed then the parties can take the matter to the Court of Appeal (only on a point of law) thus bypassing the lower stages of the court, thus, illustrating that tribunals are part of the court structure.
Administrative Tribunals
These are tribunals which have been created by statute to enforce rights which have been granted through social and welfare legislation. New rights and responsibilities are being created all the time so a tribunal is created to control and judge disputes arriving from the application of the law. For example, following the Child Support Act 1993, The Child Support Agency Tribunal was created. There are now 70 different types of tribunal, and many of these will have panels sitting at several places around the country so that there are over 2,000 tribunals in total. Each tribunal is headed by a legally qualified chairperson who sits with two independent members who represent the view of either side respectively. Individuals are greatly encouraged to bring their own cases and avoid the use of lawyers. This is mainly because the use of a lawyer increases the costs of the process and can create an imbalance to the equality of the parties.
Domestic Tribunals
These tribunals are set up and used by private parties usually for their own disciplinary control. They must ensure they keep to the rules of justice. The tribunals are staffed by senior members of the profession and have the powers to fine, suspend or prevent from practicing.
Tribunals v Court system
Tribunals were set up to prevent the overloading of the courts. They are a fundamental part of the court system as they hear six times the number of cases dealt with by the courts. Obviously they are not as prestigious as the court system; however they support it and combat many flaws of the court system. For example, they are quicker, cheaper, private and informal. The costs are kept low as there is great encouragement not to use lawyers as the parties are encouraged to represent themselves. However, it is worth noting that parties who are not represented have a much lower chance of winning their case than those who are represented. In relation to the essay title, this is not a problem in the court system as each party is legally represented and it seems peculiar that representation is optional when really there should be strict rules on the issue. This is because it has to potential of an unbalanced hearing with businesses or large firms taking their own lawyer and this will obviously create inequality if the other side is unrepresented. The speed of the hearings is comparatively quicker than that of the courts, although the process can still take a long time as they are staffed by part time lay members who have a large workload. The procedure of the hearings is fairly straightforward due to their informality, flexibility and lack of strict rules. Tribunals are also flawed as they do not have to give reasons for their decisions; thus not following a system of precedent and having no rights of appeal for some tribunals.
Overall, tribunals and the court system are not directly intertwined because the applicant uses one or the other and not a combination of the two. Therefore, you cannot really compare them against each other as they are both set up to resolve different disputes.
Now that I have discussed the various types of alternative dispute resolution, I will now concentrate on why they may be considered the best way of solving a dispute.
Does Alternative Dispute Resolution offer the best means for solving a dispute?
There are numeral ways that ADR can help to solve disputes as I have discussed above. The individual use of Negotiation, Arbitration, Conciliation, Mediation and Tribunals can all help to provide access to justice to people concerned with civil matters. The main and most recognised advantage is the cost. ADR considerably reduces the cost of taking a case to court; this allows people who cannot afford legal representation the opportunity to gain access to justice. Another benefit of ADR is the efficiency, the time span of cases is also considerably reduced. This is because the formalities of court proceedings are taken away to ease citizens, as court proceedings can be a nerve-wracking and daunting prospect. Another major benefit of ADR is the fact that legal terminology is banished. This could be one of the main reasons why courts are not the best means of solving a dispute. Most people who need to go to court for one reason or the other are totally unfamiliar with legal terminology, making the case a complex and lengthy process. This also takes away the need for a lawyer to be present, again lowering the costs of the process, compared to taking a case to court where the costs can spiral into hundreds of pounds. When comparing ADR mechanisms to the court system it is also necessary to consider their disadvantages. Obviously the main advantage of using the court system is the fact they have the knowledge and expertise, this may not be the case for an ordinary lay person. Furthermore if the case is of a serious nature, the courts are more than likely to suggest to the parties that ADR is possible not the best option. Also, tribunals hold a disadvantage as they do not have to give reasons for their decisions. This can prove to be problematic for the parties if they wish to appeal against a decision. If the parties had taken the case to court their right to appeal would be mandatory, this is because it is a citizen’s right to appeal the decision of the courts. However, there is opportunity for the parties to appeal on a point of law by going to an Appeals Tribunal.
Overall, ADR seems to offer many advantages such as low cost, greater speed, private and informal. However, it must be noted that this is not always the case. This is because common ground can prove to be particularly problematic to establish is some cases; thus making ADR unsuitable as it relies greatly on cooperation. Also, is ADR is not used correctly; it almost becomes a second-class justice for those who cannot afford to bring a civil claim through the court system. ADR has proved to be a huge success as many people are now aware that their case may be solved more cheaply and quickly than going through the procedures of a court case.
Conclusion
In conclusion, I have drawn upon many alternatives to the use of the civil courts when solving a dispute. The main alternatives are seen under ADR and Tribunals. Although these alternatives are flexible, informal and cost effective there is no guarantee of solving a dispute. Referring to the essay title ‘‘Do you think that the courts offer the best means of solving disputes?' I conclude that the answer is ‘in some cases’. The nature of the dispute can almost determine the best way to solve it. For example, civil courts are suitable for parties with little or no common ground; tribunals are suitable for detailed welfare disputes and so on. Overall, I would argue that the courts do not offer the best means of solving disputes. This is because it really depends on the nature of the case in question and the status of the relationship between the two parties. This really determines whether the best option is to go through the courts or try a particular form of ADR.
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