Court action is not the best way of solving a dispute; a range of alternative methods of dispute resolution might be used. One of simplest is of course informal negotiation between the parties themselves, with or without the help of lawyers; the high numbers of civil cases settled out of court are examples of this.
Formal schemes include the Advisory Conciliation and Arbitration Service, which mediates in many industrial disputes and unfair dismissal cases; the role of ombudsmen in dealing with disputes in the fields of insurance and banking, and in complaints against central and local government and public services; the conciliation scheme offered by courts and voluntary organisations to divorcing couples and the arbitration schemes run by the Institute of Arbitrators for business disputes.
In a court hearing, the rules of procedure lay down a fixed framework for the way in which problems are addressed. This may be innapropriate in areas, which are largely concern to the parties involved. Alternative methods can allow the parties themselves to take more control of the process. Court hearings inpose a solution on the parties, which since it does not involve their consent, may need to be enforced.
If the parties are able to negotiate a settlement between them, to which they both agree, this should be less of a problem. The majority of court hearings are public. This may be undesirable in some business disputes, where one or both of the parties may prefer not to make public the details of their financial situation or business parctices because of competition. A stautory conciliation scheme administered by ACAS operates before cases of unfair dismissal can be taken to an Employment Tribunal.
ACAS conciliation officers talk to both sides with the aim of settling the dispute without a tribunal hearing; they are supposed to procure reinstatement of the employee where possible, but in practice most settlements are only for damages. The success of the scheme is sometimes measured by the fact that two thirds of cases are either withdrawn or settled by the conciliation process. However, this ignores the balance in power between the employer and the employee, especially where the employee has no legal representation.
The fact that there has been a settlement doesn't mean that it is a fair one, when one party is under far more pressure to agree than the other. In many ways, the court system is an undesirable forun for divorce and its attendant disputes over property and custody, since the adversarial nature of the system can aggravate the differences between the parties. This makes the whole process more traumatic for both parties, and clearly is especially harmful if there are children involved, since the couple will usually have to maintain some kind of contact after divorce.
Consequently conciliation has for some time been made available to divorcing couples not necessarily to get them back together but to try to ensure that any arrangements between them can be made as amicably as possible, reducing the strains on the parties themselves as well as the children. In divorce cases generally, success depends on the parties themselves and their willing ness to cooperate. The parties may find that meetin in a neutral environment, with the help of and experienced, impartial professional helps them to communicate calmly and can make the process of divorce less painful for the couple and their children.
By avoiding the need for a court battle in which each feels obliged to accuse the other of being unfit to look after their children, a battle which can be expensive as it is unpleasant, at a time when one or both parties may be under considerable financial strain. Many commercial contracts contain an arbitration agreement, requiring any dispute to be referred to arbitration before any court proceedings are undertaken, the aim being to do away with the need for going to court.
Arbitrators usually have some expertise in the relevant field, and lists of suitable individuals are kept by the Institute of Arbitration. The parties themselves choose their arbitrator, ensuring that the person has the necessary expertise in their area and is not connected to either of them. Once appointed, the arbitrator is required to actin an impartial, judicial manner just as a judge would, but the difference is that they will not usually need to have technical points explained to them, so there is less need for expert witness.
Under the Arbitration Act 1950, hearings must be conducted in a judical manner, in accordance with the rules of natural justice, but proceedingsare informal and held in private, with time and place decided by the parties. The arbitrator's decision, known as the award, is often delivered immediately, and is as binding on the parties as a High Court judgement would be, and if necessary can be enforced as one. Arbitration fees can be high, but for companies this may be outweighed by the money they save through being able to get the problem solved as soon as it arises, rather than having to wiat months for a court hearing.
The arbitration hearing itself tends to be quicker than a court case, because of the expertise of the arbitrator, in a court hearing time and therefore money can be wasted in explanation of technical points to the judge. The ability of the parties to choose their arbitrator promotes mutual trust in and respect for the decision, and arbitration is conducted with a view to compromise rather than combat, which avoids destroying the business relationship between the parties.
The advantages of ADR Many procedures try to work without any need for legal representation, and even those that do involve lawyers may be quicker and therefore cheaper than going to court. However, concerns have been expressed that a bigger role for alternative dispute mechanisms as suggested by Lord Woolf, could simply be a way of solving disputes cheaply, offering a form of second class justice. Alternative methods tend to be more informal than court procedures without complicated rules of evidence.
The delays in the civil court system are well known, and witing for a case to come to court may, especially in commercial cases, add considerably to the overall cost and adversley affect business. Those who run alternative dispute resolution schemes often have specialist knowledge of the relevant areas, which can promote a fairer as wellas a quicker settlement. Most alternative methods od dispute resolution aim to avoid irrevocably dividing the parties, so enabling business or family relationships to be maintained Disadvantages of ADR.
As the unfair dimissal conciliation scheme shows, the benefits of voluntary negotiation agreemtn may under mine where there is a serious imbalance of power between parties; in effect one party is acting less voluntarily than the other. Where a dispute hinges on difficult points of law, an arbitrator may not have the required legal expertise to judge. There is no doctrine of precedent and each case is judges on its merits providing no real guidelines for future cases. Legal aid is not available for any of the alternative methods of dispute resolution. Decisions not made by courts may be difficult to enforce.