Alternative Dispute Resolution: What Are the Ways That a Civil Case Can be Resolved outside the Court System?
Are there ways to avoid Court? Is it cheaper and Faster?
A large percentage of civil cases avoid taking the ‘road’ of litigation. This is because litigation tends to be costly in time and money, the case is publicised, and the whole experience might be traumatic for the parties. As a result Alternative Dispute Resolution, otherwise known as ADR or external dispute resolution in countries such as Australia,resolves disputes without resorting to the courts.
There are different types of ADR known as negotiation, mediation, conciliation, arbitration, and tribunals. Despite historic resistance to ADR by many popular parties and their advocates, ADR has gained widespread acceptance amidst both the general public and the legal profession in recent years. To be more precise some courts now require parties to resort to ADR of some type, usually mediation, before permitting the parties' cases to be tried. This is evident by the European Mediation Directive (2008) which expressly envisages the so-called "compulsory" mediation. This stresses that attendance is compulsory, not that settlement must be reached through mediation.
The first type of ADR which is also its most informal type is negotiation. If you have a dispute with a party then it could be resolved directly with the other party. The advantages of negotiations are that the process is private hence no information is published, and secondly, it is the quickest and cheapest way of settling a dispute. However, the disadvantages of negotiation arise when a case is not successfully resolved through negotiation because it then proceeds to the Court which in turn means that solicitors are instructed thus costs increase and it takes much longer time than if the case went initially to the Court. This happens because cases can drag on for ages only to be resolved the day of the hearing.
The second type of ADR is mediation. This involves a neutral third party acting as a ‘go between’, to try to help the parties to reach an agreement-compromise. Mediators can be experts but not necessarily have legal knowledge of the subject matter.
A. Mediator’s Prime Duty
The mediator’s prime duty is to discuss the matter with each party in separate rooms and consider if there is a common ground between the parties. Then he will explore the position of each party carrying offers to and from therefore the mediator is not expected to provide his opinion to the parties.
B. Mediation Process
The mediation process is informal, but can also become formal via the Formalised Settlement Conference that consists of a mini trial were each side to the dispute present their case and arguments to the panel. The panel consists of an executive from each side and a neutral person. The two executives from the panel after hearing the case will assess the positions of the two sides and endeavour to reach an agreement. If the two executives cannot come to an agreement then the neutral party will act as a mediator. The Court takes into account the fact that there is an agreement or not about the dispute.
However, normally a case does not take a long time to be resolved since the parties state the points on which there is a disagreement. These mini trials are used in the United States to settle commercial disputes. In the United Kingdom though, commercial mediation is used through the Centre For Dispute Resolution, formed in 1991, which offers mediation services. Its members include top London law firms. Businesses that have used the Centre to resolve dispute say that it has saved them thousands of pounds in courts costs. For example, the cost of having a mediator is anything between 1,000 to 1,500 English pounds in comparison to 100,000 to 1 million English pounds required follow the "Court's road".
C. PROS OF MEDIATION
The advantages of having a mediator are important and should be scrutinised. Firstly, the decision does not have to be legal which denotes that the compromise reached between the parties and as such the decision, may be based on commercial commonsense and compromise.
Secondly, the mediator makes it easier for businesses to carry on doing business with each other for the reason that a mediator can provide advice on how the parties should conduct future business with each other. On the contrary, this cannot be achieved in the courts, as the atmosphere is hostile and bitter.
In addition, the mediation avoids the winner/looser result that occurs in the courts, as it is said that with mediation ‘everyone wins’.
Moreover, it avoids the adversarial system used in the courts where each party presents their arguments. Finally, the most significant gain is that in mediation the parties are in control as they can take the decision and not the mediator.
D. CONS OF MEDIATION
On the other hand, the disadvantages of mediation are also worth consideration. To start with, there is no guarantee that the dispute will be resolved. So If the dispute is not resolved then the case may precede to Court therefore more costs and delays arise as a result.
Additionally, the amounts paid in mediation settlement are lower than the amounts awarded by the courts.
Moreover, the parties to each side of the dispute pay for their own legal costs.
Lastly, successful mediation requires a skilled mediator. If the mediator does not have the required skills then mediation becomes a bullying exercise and as such the weaker party is forced to settle.
Conciliation is another type of ADR. This is similar to mediation in that a neutral party helps to resolve the dispute with the exception that in conciliation the conciliator plays a more active role. The conciliator is expected to suggest grounds for compromise and to try and reach a settlement. The industrial disputes such as unfair dismissal, redundancy disputes and so on. The Advisory Conciliation and Arbitration Service (ACAS) can provide an impartial opinion on the legal position. If conciliation does not lead to a resolution it may be necessary to try to continue with a court action.
A. BENEFITS OF CONCILIATION
The advantages of conciliation are similar to the lines of the two ways mentioned above. Firstly, the decision does not have to be legal which means that the compromise reached between the parties and as such the decision may be based on commercial commonsense and compromise.
Secondly, the conciliator makes it easier for businesses to continue to transact with each other since conciliation can provide advice on how the parties should conduct future business with each other.
Moreover, it avoids the adversarial system used in Court where each party presents its arguments ‘fighting’ on factual or legal issues. Furthermore, it is cheaper and quicker than going to Court.
B. CONS OF CONCILIATION
On the other hand, the disadvantages of conciliation are the following.
First of all, there is no guarantee that the dispute will be resolved. If the dispute is not resolved then the case may proceed to Court therefore more costs and delays will be required.
Additionally, the amounts paid in conciliation settlement are lower than the amounts awarded by the courts. Moreover, in conciliation the parties are not in control. It is the conciliator that has control, unlike mediation.
Lastly, successful conciliation requires a skilled conciliator. If the conciliator does not have the skills that are required then the conciliation will fail thus the parties will go to court.
A. What is it?
Arbitration is another type of ADR. The word ‘arbitration is used to cover two quite different processes. The first is where the courts use a more informal procedure to hear cases; this is the way proceedings in the Commercial Court of the Queen’s Bench Division precede, where the Claimant is claiming less than 5,000 English pounds in damages.
The second meaning of the word ‘arbitration’ occurs when the parties agree to submit their claims to the private arbitration. This type of arbitration is relevant to alternative dispute resolution, as it is yet another way of resolving a dispute without the need for a case to proceed in Court. Private Arbitration is now governed by the Arbitration Act 1996 and section 1 of that Act states that the aim of arbitration is to reach a fair resolution of disputes by an impartial tribunal, without delays or expense. The Act also states that the parties should be free to agree how their dispute should be resolved.
When is an Arbitrator appointed?
Firstly,an arbitrator may be appointed to a dispute if the statute explicitly states so,secondly, if the parties have agreed for an arbitrator to be appointed, and lastly, if there is a term in the contract stating that in case of a dispute the matter will be resolved by an Arbitrator.
Once it has been agreed it then becomes a term in the contract which renders it binding. This is known as a Scott V Avery Clause. Many commercial contracts have such a term such as leases, insurance and shipping contracts. Agreements to have an Arbitrator will usually be in writing, as the Arbitration Act 1996 (AA1996) applies to written arbitration agreements. The agreement to proceed with arbitration can be created by the parties at any time. So it formedade before a dispute arises or when the dispute arises, or even after a dispute arises.
C. Arbitration Agreement
Where there is an arbitration agreement in the contract, the AA 1996 states that the matter must go to arbitration. So even if the dispute goes to court first the Court will refuse to hear the dispute. However, this rule is different in respect to consumer claims where the dispute can be dealt with by the courts or the Small Claims Court when dealing with an amount less than 5,000 thousand English pounds. The consumer who has a dispute has the choice either to go to Arbitration as stated in the agreement or have the case heard by the courts.
D. Who can be an Arbitrator? How are they appointed?
The arbitrators are neutral third party experts in the area of the dispute, who are appointed by the parties to a dispute to hear the dispute. Any decision they reach is final and binding. The appointment of an arbitrator starts with the consent of the parties.
As section 15 of the AA 1996 states the parties are free to agree on how many arbitrators should hear the dispute. There could be two or three arbitrators hearing a dispute or there may be a sole arbitrator. However, if the parties cannot reach an agreement as to how many arbitrators should be appointed to hear the dispute, then only one arbitrator should be appointed and he/she is appointed by the Court. Albeit the arbitrators are experts in the area of disputes, they are not legally qualified thus if the dispute involves a point of law the parties may decide to appoint a lawyer.
The actual procedure is left to the agreement of the parties in each case, so that there are many forms of hearing. In some cases the parties may opt for paper arbitration where a party’s arguments are put in writing. This document, in conjunction with any other relevant documents, is sent to the Arbitrator who reads the documents and reaches a decision.
Alternatively the arbitrator may opt documents and parties to attend where the documents and written arguments of parties are not sent to the arbitrator. But, before the arbitrator reaches a decision the parties attend before the arbitrator and state their case orally but, and it must be stressed, not under oath. However, at the parties’ request, witnesses can be asked to attend and provide evidence under oath, which renders the hearing formal, as the witnesses are subpoena to offer evidence.
The date, time and place of the arbitration hearing are all matters that the parties decide in consultation with the arbitrator. This gives a great degree of flexibility to the proceedings as the parties can chose what is most convenient for all the individuals concerned.
F. Decision of an Arbitrator
The decision of the arbitrator is called the ‘award’, even if he awards nothing. The successful party may enforce an arbitrator’s award in the same way as a High Court Judgement. The High Court will make the appropriate orders once the award is registered with the Court. The following enforcement orders can be made by bailiffs who go and seize goods or attachment of earnings order or bankruptcy.
The arbitrator’s decision is final even though, you can challenge the decision on points of law to the Queen’s Bench Division of the High Court (UK). No further appeal will be allowed unless the High Court grants a leave to appeal to the Court of Appeal (Civil Division). The High Court will only give leave to appeal to the court of Appeal if the case involves a point of law of public importance. A prime example occurs when there is a dispute about the meaning of a clause in a standard form of contract widely used in a particular industry such as the NEMA in 1982. In addition, you can also appeal arbitrator’s award on the ground of serious irregularity in the procedure of section 68 of Arbitration Act 1996.
G. BENEFITS OF ARBITRATION
Firstly, proceedings or hearing are held in private. At a time and place agreed between the parties. There is no publicity with a sharp contrast to the way a case is handled in Court. Secondly, an arbitrator may be an expert, qualified in a relevant technical subject that saves time and cost. If the case goes to Court, a situation could arise where an expert witness would need to be called in order to explain technicalities to the courts.
In addition, it is quicker and cheaper than going to Court. Moreover, arbitration is conducted in an atmosphere of compromise and it is more informal and relaxed hearing than going to the Court. Furthermore, parties can choose their own arbitrator, so they can choose an arbitrator who can deal best with their dispute; he/she can be a technical expert, lawyer or a professional arbitrator. Finally, an arbitrator’s decision is final and can be enforced by the courts.
E. CONS OF ARBITRATION
The disadvantages of arbitration are various. Firstly, legal aid is not available to bring proceedings for arbitration. This might cause the parties to be ‘out of balance’ as regards to their ability to present their case. For example, one party may be legally represented and the other not because he might have a low income and hence no legal aid in case the Court dealt with the matter.
Secondly, arbitration is unsuitable for disputes involving substantial questions of law. If the dispute involves difficult questions of law, then one of the parties may refer the matter to the High Court. This will add to the costs. The unsuccessful party would have to pay the arbitrator’s fees and expenses, the cost of providing the premises used for the hearing as well as the legal costs. In addition, arbitration can be costly.
Furthermore, arbitration does not have to reach his decision in the same legal manner that a judge does therefore there is inconsistency. Moreover, it may not be in the public interest that facts, which ought to be disclosed, are kept secret through arbitration procedures.
Additionally, parties are not always aware of the consequences of agreeing to arbitration. Also, rights of appeal are limited because you can only appeal on a point of law or apply for judicial review if there has been a breach of the rules of natural justice such as irregularity in the proceedings etc.
Lastly, many foreign companies opt UK for arbitrations hence there are a lot of delays that may even be the same as when the case went to court.
Tribunals is the last type of ADR. Tribunals play an important part in the English Legal System even though they operate alongside the court system. Tribunals were formed in the second half of the 20th century after the Second World War and there has been a growth in the number of tribunals. This is because there has been an expansion of government intervention in social and economic affairs and it was felt that such disputes should be dealt with by the courts such as the increase of welfare benefits due to the development of the welfare state. It was stated that special Tribunals would provide a cheap, informal, quick and expert means of resolving such disputes.
However, after the Crichel Down Scandal which broke out in 1954, it was revealed that government’s administrative inefficiency- the Franks Committee- was set up in 1957 to recommend that tribunal procedures should be governed by the principles of "openness, fairness, and impartiality".
In addition, the Council of Tribunals was set up to supervise Tribunals. However, it had an advisory role so it could only make recommendations. Nevertheless, the Leggatt Report in 2001 recommended that the Council should have an increasing role as well as members should include some people with the experience and perspective of users. Unlike ADR where the parties can decide whether or not to use the Court, the parties in tribunal cases cannot go to court to resolve their dispute. The tribunal must be used instead of going to Court proceedings thus it is the most informal type of ADR.
B. Different types of Tribunals
There are different types of tribunals such as the Administrative tribunals and industrial tribunals. To begin with, the Administrative tribunals have been set up by statute, sometimes referred as statutory tribunals, to enforce rights that have been granted by social and welfare legislation. Administrative Tribunals handle disputes involving government dept, public authorities; nevertheless some administrative tribunals are concerned with problems between individuals such as rent tribunals, industrial tribunals.
Not all tribunals are formed by statute for example, the Criminal Injuries Compensation board. The courts would be overburdened if they had to decide all the constantly recurring and relatively trivial problems heard by tribunals. Tribunals are subject to the Tribunal and Inquiries Act in 1971 examples of it is the Data Protection Tribunal, the VAT Tribal, Social Security Appeals Tribunal etc. As tribunals are set up by the development of the welfare state, if there are new developments this means the creation of new tribunals such as the Child Support Act in 1993, following the Child Support Appeals Tribunal was created. There are now 70 different types of tribunals, and approximately 2,000 tribunals in England.
Secondly, the Industrial tribunals. It hears disputes arising out of contracts of employment or unfair dismissal, redundancy payments, equal pay and sex discrimination. It is chaired by a lawyer with seven years of experience, who sits with two lay experts, one of them drawn from a panel of employer’s nominees and the from the union panel. Hearing can take place in public but also in private.
Thirdly, the Employment Appeal Tribunal, known as EAT. The Appeal lies from industrial Tribunal’s decision to the EAT on points of law, no appeal lies on fact. It is thus important that the parties at the hearing properly present the facts. A High Court Judge hears the appeal as well as lay persons. The number of lay persons hearing the appeal would either be two or four and they must possess special knowledge or experience of industrial relations. The decision is made by the majority but legal aid is available. EAT hears cases in public and private. It may review a case and change any order made in the Industrial Tribunal. However, appeals can only be made in the EAT by the Court of Appeal on points of law only.
C. Composition of Tribunals
The composition of the tribunals varies but many comprise the following. First of all there is a chairman. The Tribunals and Inquires Act in 1992 states that in certain specified tribunals the Chairman is to be selected from a panel appointed by the Lord Chancellor.
Secondly, there is a clerk. Often a civil servant from the relevant government department such as the Deputy of Social Security in the case of Social Security Tribunals.
Lastly, unpaid lay persons. Experts in their subject and they may include persons with relevant qualifications examples include doctors or engineers.
D. Supervision over Tribunals
Due to the fact that tribunals operate along the court’s system it is important to have a body, which supervises over the tribunals. After the Crichel Down scandal the Franks emphasised that there must be control. Hence there are two types of control namely by the courts and by the Council of Tribunals.
The control of the courts can be achieved in two ways. Firstly, the Appeal system against Tribunal decisions. For example, the Industrial Tribunal decision, from here there is a right of appeal only on points of law. In addition, the Employment Appeal Tribunal; appeals here are heard in by the High Court judge plus two to four lay persons.
The second way of control exercised by the courts is made by applications of judicial review. In this scenario someone can appeal in the Queens Bench Division only if the other party has broken the rules of natural justice. These are the audi alteram partem which means that the parties were not given the right to be heard. Also, if there is a bias in the proceedings.
Lastly, if the conclusion is so unreasonable that no other reasonable party or body would have reached it such as the case of R V Barnsley MBC Ex Parte Hook in 1976. The two remedies given by judicial review is injunction and declaratory judgement. Another way to control tribunals is the control by the council of Tribunals.
E. PROS OF TRIBUNALS
The advantages of tribunals are of considerable importance. This is because they operate more quickly than the courts. A case that goes to the tribunal is dealt within a day. However, there is evidence which supports the view that delays take place sometimes. This is evident in the case of Alison Halford.
Secondly, tribunals are cheaper than going to Court so applicants are encouraged to deal with cases by themselves and not be represented by lawyers.
It must be highlighted that applicants who do not have legal representation have less chance of winning than those who are legally represented which is 49% according to statistics made in early 1990s whereas those without lawyers had 28% success rate. Thirdly, tribunals operate in a specialised field, it can build up an expertise in that area which no Court could hope to achieve. In addition, tribunals are more flexible than the courts as they do not have to follow judicial precedent. Moreover, they operate less formally than the court and most cases are heard in private. Finally, due to the presence of lay persons it denotes that there will be common sense in the proceedings.
F. CONS OF TRIBUNALS
The disadvantages of tribunals are the following. Firstly, the legal aid is not available. Therefore as statistics show there is only 28% of success rate for those who are not legally represented.
Secondly, tribunals have a tendency to behave too much like the courts.
Thirdly, there may be injustice due to the fact that there are too many overlapping bodies. Although they are supposed to be informal, some critics, including some of the reports of the Council of Tribunals, say that they are remote and inaccessible as courts, and ordinary people are unable to understand them. In particular, the use of an adversarial rather than inquisitorial approach, may lead to unfairness.
Additionally, because responsibility is taken away from those who should have possessed it (the judges) and placed into the hands of less experienced amateurs, there could be risks involved and in extreme cases it could be dangerous.
Finally, it is not sure whether you have the right to appeal. This is because the right to appeal in some tribunals is permitted but it is also limited in other Tribunals one of which is Industrial Tribunals.
The term Alternative Dispute Resolution refers generally to all the alternatives to litigation that have been discussed namely Arbitration, Conciliation, Mediation, Negotiation, and Tribunals. The pros of using ADR on the whole are that it is faster, cheaper, and less stressful than going to Court. On the contrary, the cons of using ADR are that the individuals involved in ADR do not always possess relative skill and expertise that a Court does in order to help them resolve their differences which naturally leads to increasing costs and delays. Nevertheless, the use of ADR is growing and the references to the Woolf Report, the Practise Direction of 1995 and more recently the European Mediation Directive in 2008 and so on are stressing the increasing importance of ADR in our days.