"Discourage litigation. Persuade neighbours to compromise whenever you can. Point out to them how the nominal winner is often the real loser – in fees, expenses, and a waste of time. " (Abraham Lincoln, July 1850) This statement gives the main reason for ADRs' creation which is to limit the amount of money and time spent on dispute resolution whenever it's possible, by avoiding litigation. Thus, ADRs are meant to be a relatively quick and cheap way to settle conflicts. They are a real alternative to litigation in Civil Courts.
The different types of ADR The four main ADRs are arbitration, conciliation, mediation and ombudsmen. * In mediation, the parties with the dispute meet in a neutral place, and an impartial third party, the mediator, helps them to reach an agreement. To do so, the mediator can ask questions to both parties letting them use the answers to agree on a solution (he does not interfere in the decision-making process). This kind of mediation is called "facilitative mediation".
The mediator can also make some suggestions about the possible solutions to the dispute. This kind of mediation is called "evaluative mediation". However, in both cases, the final decision is made solely by the parties involved in the conflict and the remedies agreed are not restricted to the ones a Court could order. It is important to realise that what is said in mediation can't be used in Courts later (if a party finally decides to bring the case to the Courts), unless both parties agree: mediation meetings are said to be "without prejudice".
An agreement made in mediation is usually unenforceable unless it is evidenced in writing and signed (as it will be considered as a contract). Both parties can also agree to ask the Court to turn their mediation agreement into a Court order, which will then be legally binding. In both cases, the decision can't be reviewed by a Court. The parties can agree to consider mediation as the first stage of arbitration (explained later) beforehand, in case mediation fails to settle the argument. * Conciliation is very similar to mediation.
The only difference lies in the power delegated to the third party: a conciliator may play " a more active role in bringing the parties together and suggesting solution", which is why a great majority of the disputes dealt with by a conciliator are not brought to the Courts. * In arbitration, the parties agree to present their arguments to a neutral third party, the arbitrator, and to accept his decision as legally binding. This means that, once the decision has been reached, the case is considered as closed and an unhappy party can't bring the case to the Courts unless it is to enforce the decision made by the arbitrator.
There are some exceptions however, and a decision made in arbitration can be challenged in the Courts (see sections 67, 68, 69, 70 and 71 under the Arbitration Act, 1996) Arbitration can be conducted on the basis of hearings or documents submitted by the parties. The parties may choose an arbitrator who has an expert knowledge and/or experience in the subject matter, and he/she is usually legally qualified. In fact, the law must have been taken into consideration during the decision-making process, but the arbitrator may also rely on his experience and reasonableness.
Ombudsmen deal with complaints against organisations or government bodies such as the NHS, in an impartial way. They are specialised, e. g. , complaints about the NHS are taken care of by the Health Service Ombudsman, complaints about solicitors are taken care of by the Office for the Supervision of Solicitors, etc. Their role is to conduct some specific investigation (depending on the claim) in the organisation or government body, and order or recommend remedies if they think the person complaining suffered an injustice.
They can also ask the organisation to review a particular aspect of its system if the investigation conducted have proven the system to be inefficient, or if several similar complaints have reached the Ombudsman. All ombudsmen don't have the same power, and decisions made by ombudsmen are not always binding. There are also other types of ADRs, such as "adjudication", "expert determination" and "early neutral evaluation".
In these three cases, the parties agree to choose an independent third party (usually a lawyer or an expert in the field) to either issue a binding decision (e.g. , in adjudication or in expert determination) or to give his/her opinions about their arguments and the likely outcome of their dispute in litigation (e. g. , in "early neutral evaluation"). 2) ADRs' advantages In 1995, Lord Woolf produced an interim report which critically assessed the civil justice system in England and Wales. This was quickly followed by his final report "Access to Justice" in July 1996, which triggered some important changes in the civil justice system through the Civil Procedure Act (1997) and the new Civil Procedure Rules (1998).
However, despite these reforms, litigation in Civil Courts has still a number of drawbacks that makes the access to justice difficult. ADRs can therefore be preferable in some cases where the "big tool" of litigation in a Civil Court doesn't seem proportionate to the conflict to resolve, e. g. , family and neighbours problems, etc. In fact, the new Civil Procedure Rules encourage courts to order ADRs when it's deemed appropriate and a party who refuses an ADR may be "condemned in costs" (see Dunnett-v-Railtrack, 2002). So how do ADRs make access to justice easier?
ADRs can seem like a good alternative to litigation where parties wish to remain on good terms after the dispute has been settled, e. g. , family problems, neighbours problems, etc. This is because litigation is adversarial and confrontational : each party has to prove their innocence and/or the other party's guilt, whereas ADRs leave facts interpretation and judgement to a neutral third party (e. g. , arbitration, ombudsman), which limits arguments between the two parties, or let the parties decide of the outcomes themselves (e. g., mediation, conciliation), which allows them to settle their dispute in a more friendly manner.
ADRs are more user-friendly with simpler procedures. Hence, the justice process can be less stressful as the parties know and understand the methods which will be used to resolve their dispute. * Parties may appreciate the use of ADRs, if they want their conflict to remain private and confidential to avoid bad publicity, e. g. , in commercial cases, as litigation is often a public process. * In the Courts, most judges are generalists.
The parties may prefer to refer their dispute to a specialist in the subject field and may therefore opt for an ADR which allows them to choose an expert third party to resolve (or help them resolve) their disagreement, e. g. , in adjudication, expert determination, early neutral evaluation and in private arbitration. In litigation, the parties are forced to attend the deliberation process at a time and place decided by the Court, which might not be convenient for them and discourage them from taking the dispute to the Court.
ADRs can secure the settlement of their dispute without disturbing too much the parties' individual lives. Overall, ADRs are usually cheaper than litigation which allows people with limited means to have access to justice. For this reason, ADRs are also suitable for small claims as the amount at stake can be smaller than the cost of litigation.
ADRs may provide a wider range of remedies (more informal) than litigation, e. g., an apology, a change in behaviour/policy/procedure, a new agreement, etc. Finally, the use of ADRs has had the effect of relieving the courts congestion, making the civil justice system slightly quicker. Conclusion ADRs make access to justice easier mainly because of their flexibility and their capacity to adapt to specific cases. They can be a good alternative to litigation if there is no time boundary in bringing the case to the Courts, e. g. , in employment cases.