Arbitration, on the other hand, may be judicial, as part of the Small Claims Court, or commercial. Commercial arbitration is becoming more common, when the parties to a contract agree that, in the event of a dispute, the case will be heard by arbitration rather than going to the formal courts. As well as the obvious benefits of cost, speed, having an expert arbitrator and privacy, the parties are able to determine when they want the matter settled and therefore do not have to wait at court until their case is called. They can, if they choose, select a time outside normal business hours so as not to lose time at work.
Conciliation and mediation are still less formal, when the parties are encouraged to settle their own problems, rather than having a third party decide for them. This is used when the parties have some common ground and, because it is not confrontational, allows them to maintain a reasonable business working relationship. So successful has this proved to be that the Lord Chancellor is encouraging its use in matrimonial and neighbour disputes, in an attempt to save court time and avoid the bad feeling that often arises in such cases.
If the courts are to function more effectively – dispensing justice, maintaining stability and ensuring continuity of law – then an ongoing commitment to review and reform the system is essential. If tribunals did not exist, then the formal court system would be swamped with cases. The two systems need to operate side by side, each dealing with their own fields of expertise. Although the methods of alternative dispute resolution do successfully counter some of the problems with the formal courts, they too have some detractors, but, by-and-large, both provide a reasonable degree of justice.
"Critically assess the effectiveness of alternatives to litigation in the resolution of disputes. " It is in the area of civil law that the use of alternatives to litigation have become prominent in recent years. The traditional means of settling disputes whether concerning breach of contract, tort, family matters or disputes over property has been by way of court action. Ours is an adversarial system whereby the parties to a dispute present evidence to the court, both orally and by means of documentary or other evidence, and on which the judge then arbitrates so as to declare a winner.
The judge's role is that of an umpire who listens to the evidence provided by the parties or their representatives and who then weighs up that evidence and applies the law to the facts as proved so as to reach a reasoned solution. The judge does not conduct his/her own investigations into the matters in dispute as in inquisitorial systems in most other European countries. Some commentators believe this is one of the major defects of our system in that it gives a very limited role to the judge.
A common criticism is that many lawyers try to unnecessarily complicate legal issues in order to drag out cases to fatten their fees, and that a judge should be given more power in making sure that cases are conducted as cheaply, fairly and quickly as possible. Others say that an advantage of this present system has been that the judge is seen to be impartial and aloof from the parties and can make a decision in favour of one of the parties solely on the quality of the evidence presented to the court.
One problem with this is that the court is not primarily concerned with establishing the truth but rather deciding the legal rights and duties of the parties on the basis of the facts and law presented. How good such presentation is of course depends on the knowledge, skill and experience of the lawyer/advocates presenting the case. The nature of litigation, whether in adversarial or inquisitorial systems, is that one party wins and the other loses.
Legal action under the former is likened to a battle or gladiatorial fight and in one sense this ensures that justice is done in that both parties will have had "their day in court" and the issues in dispute will have been fully aired. It is an adjudicatory process where the court imposes on the parties a decision. This in itself ensures certainty, subject in appropriate cases to the right of the losing party to lodge an appeal to a higher court on questions of fact, law or a mixture of both.
However there are crucial defects with the present civil justice system and this has been the subject of close scrutiny in the Civil Justice Review established in 1985 and which culminated in the Courts and Legal Services Act 1990. The high costs and delay have been well documented as has the ever-increasing unmet need for legal services. State provision of legal aid and advice schemes are currently costing some 1. 5 billion per annum and this has resulted in the Lord Chancellor in 1993 taking stringent action to cut provision on legal aid and advice schemes.
Rules of court ensure that the loser pays the costs of the winner ("costs follow the event") as well as his/her own and this in itself may well be off-putting for any intending litigant. Given the difficulties with litigation, recent years have seen moves to provide alternatives to court action as a means of resolving disputes. In a strict sense the usual alternatives to litigation coming within the term "alternative dispute resolution" include mediation, conciliation and mini-trials.
Tribunals offer methods of adjudication of disputes similar to the courts and were established after the second world war to relieve the courts of disputes in the main relating to social welfare and employment legislation and which involve the application of technical provisions. The courts exercise a supervisory jurisdiction over tribunals so as to ensure consistency and compliance with the law and in some cases a right of appeal may exist to the High Court or Court of Appeal from a tribunal decision.
Most tribunals reach decisions by way of a panel of three (the chairperson is usually legally qualified) but the rules of evidence are less strict than in a court. Tribunals are not strictly alternatives to litigation in that statute invariably provides for their use and in many ways their procedures are akin to that of a court of law. Arbitration is an alternative to court proceedings most often used to settle commercial disputes; landlord and tenant matters; insurance and supply of goods and services. It may be quicker and cheaper than resorting to court action, and the decision of an arbitrator can be enforced by the court.
One type is the arbitration procedure of the small claims court involving claims of no more than 5,000, and another is the Commercial Court which arbitrates in commercial matters. Most arbitrations result from having a Scott v Avery clause written into the contract, which provides that in the event of a dispute then it will be decided by arbitration. Arbitration is long established and may well provide an alternative to litigation and one which is conducted in private and where the decision reached is not subject to publicity. A further advantage is that no precedent will be created as the decision is reached on the facts of each dispute.
However the costs of the arbitration have to be met by the parties and, as with the majority of tribunals, no public assistance with costs is available. In the small claims procedure in the county court, the parties are encouraged not to employ solicitors but to act for themselves in the preparation and presentation of the case. Most parties to a dispute will enter into negotiations, either before or after seeking legal advice, and it may be possible to agree a settlement at the door of the court but the threat remains that if all else fails litigation will result and this will produce an answer.
The emphasis is altogether different with alternative dispute resolution where, instead of a decision being imposed on the parties, they effect (usually assisted by trained professionals, but not necessarily lawyers) a settlement of the points in issue. Mediation is at present most used in family disputes where it is recognised that a confrontational stance may not be the most effective way of handling such matters.
The National Association of Family Mediation and Conciliation Services with some 57 local agencies offer support to parties who wish to retain control of a dispute rather than relying on lawyers whose initial role is only an advisory one. The Centre for Dispute Resolution founded in 1990 by the Confederation of British Industry and several commercial law firms offers mediation services in commercial disputes. Mediation UK is a registered charity which provides an information and referral service for individuals or groups interested in mediation and other conflict resolution methods.
Mediation is primarily concerned with communication and the facilitation of common ground between the parties. This process may take a more active form and this may be described as "conciliation" where it is not only the parties but the "adviser" who makes suggestions as to compromise or agreement. The greater the input of the adviser the more control he/she may be able to exert over the final outcome with the result that the process closely resembles more formal dispute resolution techniques.
Not only lawyers are interested in offering mediation and conciliation services but also accountants, valuers, social workers and therapists. Two other initiatives are worthy of note. Firstly the use in commercial disputes of the "mini-trial" and secondly the use of ADR as a prerequisite to litigation. The mini-trial involves the legal teams of each party presenting their case to the parties in the presence of a "neutral adviser" (a retired judge or a neutral lawyer) with the aim of assessing the strengths and weaknesses and entering into discussions with a view to settling the matter.
Given the defects in the formal system, it might be argued that, in disputes involving relatively small amounts of money, family disputes where acrimony should be avoided, particularly where children are involved, neighbourhood disputes and consumer complaints, alternatives should be promoted either by private individuals or groups or in conjunction with the court process.
Much the same arguments as those raised in favour of tribunals and arbitration, namely speed, cost and informality can be called in aid here to suggest that alternative dispute resolution may be appropriate in some disputes and its use will enable the courts to concentrate on those disputes where litigation is necessary.