Do you think that the courts offer the best means of solving disputes?
Written by Steven Dibley Feb 2004.
In this essay, I shall endeavour to analyse the current system of administrating civil justice in the English legal courts considering both the advantages and disadvantages that fall within this method of solving disputes. Having done this, I will subsequently, convey the alternative means of solving disputes that avoid the process of litigation. This is known as alternative dispute resolution, more commonly referred to as ADR. ADR compromises of a number of options available to people involved in a dispute, I will explain these individually later on in the essay, whilst again ensuring to provide a balanced argument for all relevant. Summarily, having analytically discussed ADR in comparison to the courts, I will be able to conclude with a decision that answers the essay title and that is fully supported by the content I have produced.
Firstly, I will look more closely at the courts and the role they play in solving disputes. It should be reinforced at this stage that this essay only looks at the means of solving civil disputes both within the court and through ADR. It is not a possibility that a criminal case could be resolved through ADR as a criminal offence is one that has been committed against the state and therefore the state has the right to prosecute them. This is so even though there is often an individual victim of a crime as well.
The process of settling disputes by going to court is known as litigation. Litigation is when parties go to court and a judge decides the case. Litigation is by far the most complex means of solving disputes. In some respects, this is an advantage as it will deal with cases with much more detail and will be administered by qualified professionals with a lot of experience, therefore an abundant knowledge of similar cases. Subsequently, a competent decision based on fact and the law will be reached, so that justice will prevail.
In addition, there are specific courtrooms to deal with relevant cases. The county court and high court are both used and there are different tracks within each. Claims of under £5000 will be tried in the County court small claims procedure, £5000 to £15 000 in the County court fast track procedure, £15,000 to £25,000 in the County court multi track procedure, £25,000 to £50 000 in either the High court or County court multi-track procedure and over £50,000 in the High court multi-track procedure.
Furthermore, different types of cases are dealt with and the law is complex for settling all. For example, when damages are sought and the defendant is ordered to pay the claimant an amount of money. The different types of damages are diverse. Specific-for specific amounts, General- for pain and suffering, Nominal- small amount where no actual loss has been caused, Exemplary- to punish the defendant. Other types of remedy include injunctions- orders defendant to do or not to do something, specific performance- orders defendant to complete contract, rescission- puts parties back in their pre-contractual position and rectification- alters document to show partiesı real intention.
This formality, along with the strict time limits and procedures means parties know what to expect and are prepared.
Legal representation is also mostly commonly used in court disputes. This allows for professional assistance in preparing and presenting cases. Therefore, the client should stand a better chance of winning their case.
Disputes settled out of court are compromises from both parties so therefore one side, namely the victim, will feel slightly aggrieved as they may feel that they could, for example, sue for more damages in the courtroom. Other circumstances may prove to have left an individual injured or even worse someone may have died. Therefore, the victim/victims family will want the company responsible to suffer for their loss. They will want to circulate bad publicity concerning this company, warning others of the tragedy they have suffered to minimise the risk of it happening to anyone else. This would be best achieved through litigation, as the media will then become aware of the situation. In contrast, ADR would see the case kept behind closed doors and unknown to the public.
There are also clear lines of appeal in the courts, which should satisfy the need for justice. Permission to appeal is required in most cases. The Court of Appeal can grant it by the lower court where the decision was made or. Permission to appeal will only be granted where the court considers that an appeal would have a real prospect of success or that there was some other compelling reason why the appeal should be heard.
The use of precedent in court cases is also very important. It provides certainty for making settlements. A judge can look out outcomes of previous cases of a similar nature and can therefore then decide upon, for example, the amount of damages to award the claimant.
Taking a case to court can be an expensive exercise, even if you decide to do-it-yourselfı and not use a lawyer. There will be a court fee based on the type and size of the claim, which can be claimed back from the other party if you win the case, but there is always the risk that you will lose the case and have to pay the other sideıs costs. Even if you win, your problems may not be over, as the other person may not have enough money to pay the claim and refund your costs. If the case is complicated it could take years to complete and may cost hundreds or thousands of pounds. Given these problems, it is not surprising that many people who believe they have a good claim decide not to take court action.
The strict formality of courts is sometimes not seen as of any benefit. It can potentially destroy good relationships between parties and complicate simple disputes. For example, 2 parents may be fighting over divorce settlements and who gets custody of children. After the trial there is likely to be a lot of bitterness between the two parties due to the stress theyıve been under of a court dispute and the verdict that has arisen. As a result, the children will also suffer as their parents are not likely to be speaking too other or doing things together with the children.
Using legal representation in court disputes can prove to be extremely expensive due to the slow and formal procedure. Therefore, the parties will not only have to pay the spiralling cost of lawyerıs fees, but the losing party will also have to pay other costs. It is common that many cases donıt get to the court stage despite a party having a good case, as they cannot afford to take risk of not getting the verdict they wanted. It is impossible to calculate the cost of civil cases until after proceedings have ceased.
In addition, it is also a possibility that a party, most likely an individual, who cannot afford legal representation and does not qualify for legal aid as most civil cases do not as they donıt affect social welfare. Furthermore, they could be facing another party who does have their own contracted lawyer, most likely a company or government enforcer. This can be seen as an imbalance of fairness.
The use of precedent in civil cases is also considered a disadvantage as it is thought to be too rigid in that judges will be influenced too much by what has gone before, leading to individual injustice.
The process of appeals is also not particularly satisfying, as they are known to be extremely slow and expensive. There has to be a very good case for an appeal to be accepted and there are a lot of procedures that have to be gone through such as assessing the previous case. This consumption of time and money could also be a waste as the appeal might not be granted and even if it is the case may be lost again.
Lord Woolf recommended reforms in his report, Access to Justice (1996). The report found that virtually none of the points he sought was actually being achieved in the civil courts, and criticised the system for being unequal, expensive, slow, uncertain and complicated. The report contained 303 recommendations. The most important ones proposed were as follows; extending small claims up to £3000, a fast track for straightforward cases up to £10,000, a multi-track for cases over £10,000, with capping of costs, encouraging the use of alternative dispute resolution, giving judges more responsibility for managing cases, more use of information technology, simplifying documents and procedures and having a single set of rules governing proceedings in both the High Court and the County Court, shorter timetables for cases to reach court and for lengths of trials.
From April 26th 1999, new Civil Procedure Rules were brought into effect. These use much simpler language than previous rules. They also changed the vocabulary used in court cases.
Rule 1.1 of the Civil Procedure Rules states that the overriding objective is to enable the court to deal with cases justly. This means that the court should try to ensure that the parties in any case are on an equal footing, save expense, deal with cases in a way which is proportionate to: the amount involved, the importance of the case and the complexity of the issues in the case. Ensure that the case is dealt with quickly and fairly, allocate an appropriate share of the courtıs resources.
The main benefits of litigation that are recognised concern the impact that it can have on settling a dispute. It is by far the most intense and proven form of settling disputes, however, with this it also has a reputation as being the most devastating for the losing party, as well as both parties collectively in some respects.
The advantages of this are that on many occasions the actual process of going to court is avoided. When litigation becomes a prospective entity i.e. one party begins to take the action of enforcing it, the opposing side is more likely to compromise. Neither side is likely, in the majority of cases, to actually want to go through the lengthy process of entering a courtroom so both sides are likely to strive to avoid this.
In addition, if one party has begun enforcing litigation, and neither side want a court dispute they are more likely to indulge in different types of ADR.
The Woolf reforms have clearly had an effect on the way in which lawyers conduct litigation. There has been a move away from the adversarial attitude to one of greater co-operation. This is encouraged by the pre-action protocols, which the parties have to use and which encourage early disclosure of information between the parties. As a result fewer claims are being issued in court.
ADR includes any method of resolving a dispute without resorting to using the courts. We already saw that suing the courts to resolve disputes can be costly, in terms of both money and time. It can also be traumatic for the individuals involved and may not lead to the most satisfactory outcome to the case. There are many different methods, which can be used; these include negotiation, mediation, conciliation, arbitration and tribunals.
Negotiation is when someone negotiates directly with another person over a dispute. This has the advantage of being completely private, and is also the quickest and cheapest method of settling a dispute. Thus, it is more likely for future relationships between parties to remain intact. They will avoid the stress of a long court trial, as well as avoiding the spiralling costs that come with it.
If the parties cannot come to an agreement, they may decide to take the step of instructing solicitors, and those solicitors will usually to negotiate a settlement. In fact, even when court proceedings have commenced, the lawyers for the parties will often continue to negotiate on behalf of their clients, and this reflected in the high numbers of cases, which are settled out of court. The positive aspect of bringing in solicitors is that its more likely for negotiations to reach a further stage and the prospect of a court dispute should influence the parties to settle. However, once lawyers are involved, there will be a cost element, the longer negotiations go on, the higher the costs will be. One of the worrying aspects is the number of cases that drag on for years, only to end in an agreed settlement literally on the morning that the trial is due to start. Hence, parties will have wasted a lot of money on solicitorıs fees by dragging the case out, aiming for a better settlement, and then settling just before the court dispute begins. This is most likely due to the fact that no-one can calculate the extent of costs of a civil trial and with the prospect of the losing side having to pay, they are extremely unlikely to go to court unless the case is very good.
Mediation is when a neutral mediator, acting as a third party, helps the parties to reach a compromise solution. The role of a mediator is to consult with each party and see how much common ground there is between them. A mediator will not usually tell the parties his own views of the merits of the dispute; it is part of the job to act as a facilitator, so that the parties reach an agreement. However, a mediator can be asked for an opinion of the merits, and in this case the mediation becomes more of an evaluation exercise, which again aims at ending the dispute.
And advantage of mediation and mini-trials is that the decision need not be strictly legal one sticking to the letter of the law. It is more likely to be based on commercial commonsense and compromise. This method will also make it easier for companies to continue to do business with each other in the future, and may it include agreements about the conduct of future business between the parties. This is something that cannot happen if the court gives judgment, as the court is only concerned with the present dispute. It avoids the adversarial conflict of the courtroom and the winner/loser result of courtroom proceedings. It has been said that with mediation, everyone wins.
However, the main disadvantage of using mediation services is that there is no guarantee will be resolved, and it will then be necessary to go to court after the failed attempt at mediation. In such situations there is additional cost and delay through trying mediation.
Conciliation is similar to mediation in that a third party helps to resolve the dispute, but the main difference is that conciliator will usually play a more active role by suggesting a solution. It shares the same advantages as the other forms of ADR I have discussed. But, as with mediation, conciliation does not necessarily lead to a resolution and it may be necessary to continue with court action.
Arbitration is when parties agree to let third party make a binding decision. The agreement to go to arbitration can be made by the parties at any time. It can be before a dispute arises or when the dispute becomes apparent. Many commercial contracts include what is called a Scott V Avery clause, which 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.
The main advantage of arbitration arises from the fact that the parties have the freedom to make their own arbitration agreement, and decide exactly how formal or informal they wish it to be.
Also, the parties may choose their own arbitrator, and can therefore decide whether the matter is best dealt with by a technical expert or by a lawyer or by a professional arbitrator. If there is a question of quality this can be decided by an expert in the particular field, saving the expense of calling expert witnesses and the time that would be used in explaining all the technicalities to a judge.
In addition, the hearing time and place can be arranged to suit parties. The actual procedure used is flexible and the parties can choose that which is most suited to their specific situation; this will usually result in a more informal and relaxed hearing than in court.
Furthermore, the matter is dealt with in private and there will be no publicity. The fact that the dispute will be resolved more quickly than through a court hearing is particular beneficial to both parties.
Finally, arbitration proceedings are usually much cheaper than going to court and the award is normally final and can be enforced through the courts anyway.
However, in contrast, there are also many disadvantages to arbitration, especially where the parties are not on an equal footing as regards their ability to present a case. This is because legal aid is not available for arbitration due to the case not being in the benefit of society in general. Consequently, this may disadvantage a individual in a case against a case business, if the case had gone to court, a person on a low income would have qualified for legal aid and so had the benefit of a lawyer to present their case.
Other disadvantages include the potential problem of an unexpected legal point arising in the case, which is not suitable for decision by a non-lawyer arbitrator. If professional arbitrator is used, his/her fees may be expensive. It will also be expensive if the parties opt for a formal hearing, with witnesses giving evidence and lawyers representing both sides. Also, the rights of appeal are limited. The delays for commercial and international arbitration may be nearly as great as those in the courts if a professional arbitrator and lawyers are used.
This problem of delay and expense has meant that arbitration has, to some extent, lost its popularity with companies as a method of dispute resolution. Another problem was that arbitration had become too complex and the Arbitration Act 1996 is an attempt to improve the process.
Unlike ADR where the parties decide not to use the courts, the parties in tribunal cases cannot go to court to resolve their dispute. The tribunal must be used instead of court proceedings. Tribunals were set up to prevent the overloading of the courts with the extra cases that social and welfare rights claims generate. They can be either administrative or employment.
For the applicant in tribunal cases, the advantages are that such cases are dealt with more cheaply, more quickly, and more informally than they would be if there were a court hearing. There is also the fact that the panel is composed of a mix of legal expertise and lay expertise in the field concerned.
As applicants are encouraged to represent themselves and not use lawyers, it is true to say that tribunal hearings do not normally involve the costs associated with court hearings. It is also rare for an order for the costs to be made by a tribunal, so that an applicant need not fear a large bill if they lose the case. However, applicants who are not represented have a lower chance of winning their case than those who are represented, so the saving of cost of a lawyer may not be that cost-effective.
The speed of completion of tribunals was one of the advantages of tribunal hearings, but it is not longer true to say that cases will be dealt with speedily (Darnell V United Kingdom 1993). This is mainly due to the vast volume of work that tribunals now face, together with the fact that the lay members only sit part-time. There is also the problem of complex cases lasting several days.
It is true that there is a more informal hearing than in court; in addition, most cases are heard in private. The procedure is also relatively flexible and the tribunals are not bound by strict rules of evidence. However, for individuals presenting their own cases the venue is unfamiliar and the procedure can be confusing. Where applicants are not represented, the chairman is expected to take an inquisitorial role and help establish the points that the applicant wishes to make, this is not always achieved.
This type of criticism is also apparent at employment tribunals. In these cases an applicant in person may often find themselves opposed by a lawyer representing the employer, and so it is even more important that the proceedings should be kept simple.
The problem of the un-represented applicant comes about because public funding is not available for most tribunals, which may put an applicant at a disadvantage if the other side, which is often an employer or government department, uses a lawyer.
Other problems can arise because a few tribunals still do not have to give reasons for their decisions. Nor do some follow a system of precedent, which makes it difficult to predict the outcome of cases. In addition, there is no right of appeal for some tribunals.
There are many advantages of ADR and indeed Lord Woolf is particularly in favour of it. ADR can prove to be less expensive than courts, there is no need for representation, and the procedure is less formal among other reasons. However, there are also many disadvantages as well that have to be considered such as lack of public funding, lack of representation leading to imbalance of fairness, lack of formal procedure reducing certainty, restricted rights of appeal and the difficulty in enforcing awards.
In conclusion, it is my sentiment that the courts do offer the best means of solving disputes for all of the reasons I mentioned earlier on in the essay, but mainly because it is the most effective method of enforcement. However, it does have its disadvantages and in some instances it is more beneficial to use a form of ADR as it also has it owns advantages such as the less formal approach and speed in which disputes are resolved.