Question

Order instructions:

“While the ‘mood music’ of the courts is certainly therefore in favor of ADR, it is making slow headway on the ground as a means of resolving civil disputes”. (Zander, Cases, and Materials on the English Legal System, Cambridge University Press, 2007 (10th ed).

What forms does ADR take? To what extent, if at all, is the above an accurate assessment? Assuming that it is, can you suggest the reasons as to why ADR is making slow headway and suggest how the use of ADR can be encouraged so that its full potential can be realized?

*The completed work, maximum length 3,000 words.

Answer

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The concept of Alternative Dispute Resolution (ADR) is an extremely broad one. This is because there are near-infinite categories of procedures that are within the category of ‘not a trial’. For instance, if a dispute crops up and it is resolved away from the courtroom, the resolution is in a way ADR. Nevertheless, since so many people have been trying to come with the alternative of the courtroom, some of the attempts used have evolved to such an extent that certain categories of ADR are named and are understood to follow particular means and methods in order to bring about the desired result, that is, the resolution of a dispute.

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            The main procedures that are associated with ADR include neutral fact-finding, negotiation, mediation, early neutral evaluation, summary jury trial, arbitration, and mini-trial. All these procedures are characterized by a lack of legal formalism. Two of the most crucial aspects of these procedures relate to (a) whether the procedure is evaluative or facilitative, and (b) whether the processes followed is binding or non-binding.

            A facilitative process, which is almost always non-binding, all the parties agree to abide by the result at which they have all arrived. In contrast, evaluative processes require a neutral party to evaluate the dispute and present his evaluation to the parties. Some ADR processes may encompass activities relating to both facilitation and evaluation.

            Some people argue that neutrals always, to a certain extent, evaluate all the information presented to them, and hence, they cannot avoid the evaluation process, even in the course of facilitative processes. Although this is true, facilitative processes, just like mediation, tend to run the risk of ending up changing the nature of the entire process. In this case, mediation may end up becoming nonbinding arbitration.

            There are hybrid processes whereby a neutral first make an effort to facilitate a settlement, but if this fails, he gives his binding or nonbinding decision (Cownie 2009, p. 288). Meanwhile, the move from facilitation to evaluation ought to be done only with the full consent of all the parties either before the commencement of the process or the process has been considered to have stalled and then failed.

            When they are considering the appropriateness of the hybrid evaluative/facilitative process, the disputants need to consider the impact of this process. Once they have established that the facilitator can ultimately decide the case, any forms of concessions by either party will be made to a neutral, who may adopt the role of the decision-maker.

            The part of the English Legal System that dwells on ADR matters has recently undergone many developments. Ideally, English legal system courses often focus the most attention on the operations of the court system in its traditional form. Although courts are important, the need for alternative dispute resolution methods should never be overlooked.

Many potential litigants resort to ADR, particularly mediation in order to overcome the extremely costly litigation process. The aim of mediation is often to encourage all disputants to arrive at an agreement, thereby doing with the need to waste a lot of money and time in litigation.

The two main forms of ADR in the English legal system are tribunals and the concept of the ombudsman (Broadbent 2009, p.196). A tribunal is a system facilitates the resolution of disputes on practical grounds and not on the basis of legal formalism. In England, an excellent example of a tribunal at work is the way matters relating to employment within the Employment Rights Act 1996 are decided. In practice, the tribunals that resolve such matters comprise of a legally qualified chairperson, an employer’s representative, and an employee’s representative. As a result, the tribunals get access to the practical experience that its lay members have. It also accesses the knowledge of all the circumstances involved in various disputes from either side of the employment relationship. Such practical expertise and experience form a basis for the tribunal’s decision. It also gives such decisions a fair degree of pragmatic legitimacy.

The absence of legal formalism is also clearly evident in the way tribunals undertake their general procedures, with their main intention being to ensure that they are less intimidating than the majority of court cases. The informality arises in the fact that the strict rules governing evidence, procedure and pleading, which are ever-present in courts, are not applied in the proceedings of tribunals. For instance, tribunals are not bound by the rule of precedent.

The concept of ombudsman also represents the concept of ADR at work. The main responsibility of the holder of the office of the ombudsman is to investigate all complaints relating to maladministration. Maladministration entails situations whereby the level of performance in a government department falls below the acceptable administrative standards (Zander 2009, p. 195).

Just like the tribunals, the office of the ombudsman is a reflection of an increase n the activities of the contemporary state. However, the ombudsman procedure is not merely an alternative to the English court system, it finds its basis in a distinct approach to dispute resolution. The first ombudsman was established by the Parliamentary Commissioner Act 1967.

When ADR takes the form of arbitration, the procedure that is followed resembles a court trial but it is less formal (Stipanowich 2004, p. 873). It can be either binding or non-binding; it all depends on the agreement made between the parties. The arbitrator has to take evidence and decide on the matter in an impartial manner for the parties.

Historically, arbitrators were people with professional knowledge of the industry or trade that is involved in the dispute (Cheung 1999, p. 190). They adopted an equitable approach that relies less on the strict rules of procedure and evidence. Today, even though the arbitrator can be a retired judge or a lawyer, he needs not follow the strict rules of legal issues and evidence. Ideally, there is no appeal, meaning that the procedure is efficient and final. The main advantage of arbitration, therefore, is that a resolution of sorts is always guaranteed. The disadvantage, though, is that just like in a trial, the parties do not have control over the resolution arrived at and there little or no room for any creative resolution.

Through mediation, it is upon the parties themselves to come to an agreement on the best way to resolve the matter. The mediator does not make any decision on the case, but simply offers assistance to the parties in communication. A mediator who is purely facilitative does not express his opinion on the matter at hand. On the other hand, an evaluative mediator, on the other hand, expresses his opinion, and may even advise both parties on the best way to resolve the dispute. The best mediator is one who tries to use little of each of the approaches only at the appropriate time.

The main advantage of this approach is that both parties control the resolution. There is enough room for creativity in coming up with a resolution. The disadvantage is that it is not guaranteed that a resolution will be found. However, most of the time, effective mediations end up with resolutions being arrived at.

ADR can also take the form of a settlement conference. This approach is more evaluative than mediation. Normally, a sitting judge deals only with lawyers, and not the clients (Mistelis 2003, p. 54). The pressure of an impending trial can help, although it sometimes results in negative dispute outcomes. The rulings of the judge during pre-trial motions can also facilitate the resolution.

            At first glance, the realization that many medication-related issues in England have had to be settled in court can be regarded as an indication that the country’s mediation process has gone badly wrong. This is because mediation is always aimed at reducing litigation and not to give rise to it. In fact, however, the current trend indicates the success of mediation, since it points to the degree to which ADR is entering the mainstream litigation system of the UK. The issues that were once of academic interest only are now becoming central to the reality of fighting out a case in the court, and the guidance of the courts is increasingly becoming necessary.

In various key areas, courts have already set out guidelines for parties to use in resolving matters of policy, and have clarified their legal framework with which the mediation process should operate. The effect of this scenario has been a situation where parties are enabled to make informed decisions on the use of ADR within the country’s civil litigation system. It is also an indicator that ADR in general, is a crucial part of the English litigation process, and one which no single legal advisor or party can afford to ignore.

            The most significant legal development that arises with ADR, it appears, is the cost of litigation(Sternlight 2006, p. 570). The English legal system often requires the party that loses a trial to pay (most of) the winner’s legal costs. In a country where legal fees tend to run into millions of pounds, sometimes outweighing the claim, ADR acts as a huge incentive since parties do not have to litigate. Moreover, the parties are able to resolve their issues within the shortest possible time. For this reason, the English courts have always been in the possession of the option of influencing the parties’ behavior through cost orders.

            The example of Dunnett v.Railtrackplc (in Railway Administration) [2002] indicates the crucial role of ADR in the English legal system and how it holds the potential for parties to overcome the high cost of litigation (Slapper & Kelly 2010, p. 84). In this case, the claimant, Mrs.Dunnett, an owner of some horses, got some of the killed when they strayed onto a nearby railway line (owned by the defendant).  After suing, she lost, but after being granted leave to appeal in the Court of Appeal, the judge suggested that Mrs.Dunnett should explore the possibility of using ADR.

            Mrs.Dunnett agreed to this proposal and proposed it to Railtrack, the defendant, who rejected this idea. However, they made her an offer to her in order to settle the claim, which she rejected. After Mrs.Dunnett’s appeal was heard and dismissed, Railtrack sought an order to have her pay its legal costs. The Court of Appeal did not grant this costs order to Railtrack. For the first time, the court did this on the basis of a refusal by one of the parties to use ADR.

            When the defendant was pressed by the court to explain why he was unwilling to use ADR, Railtrack indicated that this would have involved the payment some money to her, over and above the amount that the defendant had already offered, something the defendant was not willing to do. The judge, when reading his judgment, took a different view, saying that ‘today, skilled mediators are able to come up with results that are satisfactory to both parties in the majority of cases that are far beyond the powers of the courts and lawyers to achieve’.

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            The judge went on to explain that he hoped that the publicity accorded to that part of the judgment would draw the attention of lawyers, the possibility that if they continue to turn down the hand of the chance of ADR when the suggestion is made by the court, they may have to deal with uncomfortable costs consequences.

            This decision marked a major step forward towards the use of mediation, a clear indication of how far ADR has begun influencing the court system. The main question that arises from such a case relates to how widely the courts would be willing to apply such a sanction (Slapper, 2007, p. 5). The courts would have to deal with the question of whether there were circumstances in which the refusal to mediate would be considered ‘reasonable’, in which case the need for costly penalties would not be justified.

            In a different case, Hurst v. Leeming[2001], the situation was also a refusal by one of the parties to use ADR.Mr.Leeming rejected the proposal for mediation that had been made by Mr. Hurst. The proposal had been presented both before and after the legal proceedings against Mr.Leeming. Both instances of the proposal were turned down.

When the case went on trial, Mr. Hurst lost. However, he presented the argument that he should not be obliged to pay Mr.Leeming’s legal costs on grounds that Mr.Leeming refused to have the mediation process followed. Although Mr. Justice Lightman agreed that Mr. Hurst had a ‘formidable argument’, he disagreed with his request. He went on to support his judgment, saying that ‘Mr. Leeming, quite exceptionally, was justified in holding the view that ADR did not appear appropriate since it did not have a realistic prospect of achieving a resolution’.

            In view of Mr. Hurst, the reason of rejecting the proposal for ADR was Mr.Leeming’s obsession with the injustice, which he viewed to have been perpetrated against him, and for this reason, he was not capable of evaluating the facts in a balanced manner. The judge used Mr. Hurst’s assertion to emphasize that this meant that this was an indication that no real prospect of the mediation being successful existed.

The Hurst v.Leemingcase provides an excellent example of when it is possible to indicate valid reasons for rejecting the offer of mediation, but only under limited circumstances. This case implies that courts are only rarely going to accept an argument that one of the parties that declined the mediation offer ought not to be penalized for doing so.

          The possible justifications for declining to mediate include the behavior of one of the parties, an objective assessment that ADR did not have a realistic chance of success, a belief by one of the parties that he will win during the trial, that significant legal fees have already been spent, and that the allegations that had been made were of serious nature.

          These cases established a framework on the views of the courts regarding instances when one of the parties refuses to mediate. Many other cases have been highlighted to develop the point further. In some of the cases, such as Leicester Circuits v. Coates Brothers plc [2003], the defendants had accepted to the mediation process only to withdraw the day before the commencement of ADR, on the insistence of the insurer (Atlas 2006, p. 63). In such a case, the judge refused to accept the refusal by the defendant to pay the legal fees on grounds that the ADR process did not have any realistic chances of success. This is simply because if the defendant had initially accepted to the ADR, it means that he had confidence there were realistic chances of the dispute being resolved.

          In conclusion, the ‘mood music’ of the English courts is clearly in favor of ADR. However, contrary to the views of Zander (2007, p. 118), ADR is increasingly gaining acceptance on the ground as one of the means through which civil disputes are resolved. ADR continues to be one of the options available in the emerging set of systems and procedures that are being explored as a means of overcoming the high costs of litigation. All the courts want is for all parties to contemplate submitting themselves to the systems and procedures of ADR, whenever reasonably possible, in order to overcome the high litigation costs.

References

Atlas, N, 2006, Alternative dispute resolution: the litigator’s handbook, London, Routledge.

Broadbent, N, 2009, ‘Alternative Dispute Resolution’, Legal Information Management, Vol. 9, No. 8, pp. 195-198.

Cheung, S, 1999, ‘Critical factors affecting the use of alternative dispute resolution processes in construction’ International Journal of Project Management, Vol. 17, No. 3, pp. 189-194.

Cownie, F, 2009, English legal system in context, Oxford University Press, Oxford.

Mistelis, L, (2003) ‘ADR in England and Wales: a successful case of public-private partnership’, ADR Bulletin, Vol. 6, No. 3, pp. 53-55.

Slapper, G, & Kelly, D, 2010, The English Legal System: 2009-2010, Macmillan, London.

Slapper, G, (2007) The English legal system, New York, McGraw Hill.

Sternlight, J, 2006, ‘Is Alternative Dispute Resolution Consistent With the Rule of Law?’ DePaul Law Review, Vol. 56, pp. 569-570.

Stipanowich, T, 2004, ‘ADR and the “Vanishing Trial”: The Growth and Impact of “Alternative Dispute Resolution”’ Journal of Empirical Legal Studies, Vol. 1, No. 3, pp. 843–912.

Zander, M, 2009, Cases and materials on the English legal system, Cambridge University Press, Cambridge