Most disputes can be resolved through litigation, this is done by the 1application of rules of law, to the facts agreed or established at a trial. Litigation however may not be the best method of dispute resolution. There are many reasons for this, litigation often involves some delay. ADR is generally much quicker than taking a case through the courts. Litigation is adversarial, meaning by this there can be a clear winner and a clear loser. This in effect unlike ADR can put extra strain on a relationship than preserving it.
Litigation is costly, expensive representation is required and the litigant is often left out of pocket and far from feeling that they have had a fair trial. Although ADR carries a cost, it is still cheaper than the courts. ADR can be carried out in a purely informal manner and can be scheduled more flexibly than court cases. There are a number of different routes that by which ADR can be achieved, such as; arbitration, mediation negotiation and conciliation. 2An early expert evaluation is used in ADR to investigate and give his expert opinion, on any matter that is referred to him by the parties.
This will then be used by the parties, to assist them in reaching the point of settlement or narrowing the issue. It is appropriate when the dispute involves technical or factual issues. It can also be used when the parties disagree significantly about the value of their cases. The mini trial is an alternative dispute resolution procedure that is used to resolve legal issues without incurring expenses that are associated with court litigation. Both parties agree to conduct a trial before a chosen expert, who will give a legally binding decision.
The parties sign an agreement, then each side chooses a representative, this representative has the authority to negotiate a settlement. The key point is that the representative is fully informed as to the advantages of their case and that of the opposing parties; therefore be better prepared to successfully engage in settlement discussions. Unlike litigation the mini trial does not result in formal adjudication, but is simply used as a tool to aid parties to reach a solution. Arbitration is another well known form of ADR, now partially regulated by the Arbitration Act 1996.
This involves the parties agreeing to use a specialist arbitrator to decide any dispute. The object of arbitration is to obtain the fair resolution of disputes by an impartial tribunal without necessary delay or expense. The parties should be free to agree how their disputes are resolved and the court should not generally intervene unless the arbitration process fails to reach a settlement, or if legal assistance is required, as stipulated in the 3Arbitration Act. It is legally binding on the parties. There are a number of significant advantages through arbitration as opposed to litigation.
4 There is a greater deal of flexibility; the rules of evidence need not be so strictly applied. Secondly speed, it generally results in a settlement quicker than an action in the civil courts. The parties themselves are responsible for the costs of the proceedings. Compared to litigation there will undoubtedly be a saving of court and lawyer fees, if the parties. Privacy; since arbitration hearings are conducted in private, parties can be assured that there is no risk or adverse publicity. Expertise, arbitrators are usually specialists in the field under dispute; therefore they can use their expert knowledge in reaching a conclusion.
Lastly, there is a greater degree of flexibility in the procedure, compared to litigation in that the rules of evidence need not be so strict fully applied. The decision of the arbitrator may be given more quickly the than the judgement of the court which could take weeks even months. Another route through ADR is mediation. Mediation is more informal than the other forms of ADR. It was brought about out of necessity, as the cost of litigation was rising. The uncertainty and time issues involved in litigation, forced mediation to become available. Mediation is used when people are unavailable to find a resolution themselves.
A neutral person is a mediator, 5there role is to clarify issues that are dividing the parties and identify areas where there is some form of agreement. It is arranged at a time and place convenient for the parties. Every party must be represented by a person willing to settle on their behalf. Once the mediation process has taken place, the mediator can then draw up an agreement that will be binding on the parties. It is possible for the parties to get the mediator to convert this agreement into an Arbitrators award; this provides a means of enforcement.
The advantages of mediation are that it is cost effective, cheaper than litigation. In litigation you need evidence and court costs . The process is voluntary; unlike litigation you can terminate the process at any time. This prevents parties from feeling intimidated or exploited. The third advantage is reconciliation. The agreement can be binding, the advantage of this is that parties feel comfortable and therefore are likely to comply with the terms of the agreement. Lastly mediation looks to the future, unlike litigation looks at the past. Another route available by which ADR can be achieved is conciliation.
It is the bringing of opponents into harmony. It is a discussion aiming to get the parties talking about their differences. The third party may suggest a non binding settlement which the parties may agree. One of the most well known organisations which offer mediation and conciliation in relation to employments dispute is the advisory conciliation and arbitration service. UCAS aims to improve better organisations and employment relations. The advantages of conciliation are that it is voluntary and confidential. Parties cannot disclose information without other parties' permission.
It is also reserves relationships, a contrast to litigation which hinders relationships. Thomas Atkins aged 21, had been in the army for three years and had just been recommended for promotion to lance corporal. He was engaged to be married and was the father of an eight month old child. An accident occurring on an annual event resulted in Atkins hurtling off the truck that was transporting them back to Casterbridge barracks. Atkins sustained a fractured pelvis and spinal injuries, serious enough to make him unfit permanently for military service.
He was told he will be fit for light duties in civilian life. It is estimated that his income is likely to be half of what he would have earnt as a lance corporal. The result of this is that his fianci?? e will have to continue her job as a hairdresser and child care will have to be funded for their daughter. ADR would be a good route for Atkins to take. The commercial court issued a Practice Statement in 1993 stating that it wished to encourage alternative dispute resolution. It is in the interest of Atkins and the Ministry Of Defence, to attempt a neutral non court settlement of their dispute.
The potential consequence of not abiding by a recommendation to use ADR maybe be seen in 6Dunnett v Rail Track plc (2002). Atkins obviously is facing financial difficulty. The cost of litigation, the expense of legal representation and court costs will inevitably make Atkins current situation far worse. The complexity along with delay will hinder Atkins situation, he would like his situation resolved as quickly as possible, enabling him to move on with his life, whether that be in civilian work and for him to be able to support his family.
Atkins is a lay man and there should be no reason why he should not believe in ADR. ADR can be used to assist Atkins in resolving his case for damages in negligence. These being the pain and suffering he had incurred the loss of future and earning capacity. Prior to 1999 the civil justice system was plagued by problems of cost, delay and complexity. In response Lord Woolf created a report on the civil justice system with over three hundred recommendations for a significantly different approach to civil procedure representing and new landscape for civil litigation.
Many of the Woolf reports recommendations have been implemented via the civil procedure act7 1997. 8Part 1 of the civil procedure rules emphasises their primary purpose as a new procedural code with the over riding objective of enabling the court to deal with cases "justly". 9Rule 1. 4(1) states that the court must further the over riding objective by actively managing cases. 10Part E includes encouraging the parties to use an alternative dispute resolution procedure if the court considers that appropriate.
Therefore even if Atkins did decide to take the case to court, under this rule he would be encouraged to use ADR. If he failed to do so he will be asked for his reasons for doing so and then he may incur expensive court costs because of this. The Pre-Action protocols are an important feature of the reforms. This includes personnel injury as in the case of Atkins. 11Purpose of this was to firstly, focus the attention of litigants on the desirability of resolving disputes without litigation. This therefore is again encouraging settlement using ADR opposed to litigation.
Taking into consideration the above, litigation would not be a suitable method in resolving Atkins case. I would suggest that the best route for Atkins to use is that of conciliation. I have come to this conclusion because conciliation takes mediation a step further and gives the mediator the power to suggest grounds for a compromise and the possible basis for a conclusive agreement. It is an excellent method of dealing with problems. As Atkins and the Ministry of defence can determine their own solutions and therefore feel committed to the outcome.
The fact that the conciliator assist's the party in finding a compromise without imposing a decision, allows Atkins to be in control of the situation. It also allows for privacy, in the Ministry of Defence's interest. It prevents exposure of the case to the public. Unlike litigation it is fast and therefore will resolve Atkins financial and well being so that he can make a recovery and not be put under any more undue stress. Any settlement will be on the terms agreed by Atkins and therefore he will be in control of the outcome of the procedure.
Last but least the resolution won't be binding unless agreed by Atkins and the Ministry of Defence. 1 John Wheeler (2002) (The English Legal System) (Pearson Education Limited 2002) Using the law library 2 Slapper and Kelly (2004)(The English Legal System)(7th Edition)(Great Britain) Using the law library 3 Arbitration Act(1950) s 26 4 John Wheeler (2002) (The English Legal System) (Pearson Education Limited 2002) Using the law library 5 Stefan Fafinski and Emily Finch (2007)( English Legal System)(England)Using the law library 6 Dunnett V Railtrack plc (2002)