How effective would ADR be to the parties potentially involved in your three chosen examples? Is the fear that ADR brings about 'second class justice' realised in your three chosen examples? There are a number of official routes that disputing parties may take to resolve their differences, which do not involve the formality of a courtroom. These methods include the use of tribunals, mediation, arbitration, negotiation or Ombudsmen and can be more inquisitorial, less adversarial than the traditional court centred approach.
These routes are called Alternative Dispute Resolution, and the three methods that will be focused upon in this essay are mediation, arbitration and the use of an Ombudsman. Mediation is a practical way of resolving disputes in situations where the hostile parties have to maintain some kind of ongoing relationship. A neutral third party helps them reach their own decision, so this could involve neighbours contesting which household should bear financial responsibility for a boundary fence which requires replacement.
In such a situation, the parties that enter mediation begin as equals and are guided to concentrate on the dispute in an atmosphere less formal and intense than the courts. This is an efficient, fast and inexpensive manner of settling the dispute, which is beneficial to both parties. However, as mediation often involves a compromise, which would involve sharing the cost of the new fence in this example, there remains potential for further conflict as neither party will have achieved the result they initially desired.
From this angle it could be argued that mediation delivers 'second class justice', but as the agreement is not forced upon the participants and they reach it themselves, it could be assumed that the parties do not view it as such. An example of the use of an insurance Ombudsman comes from direct personal experience. The details briefly are that a motor insurance company would only pay 90% of a claim as it had gone into liquidation approximately three months prior to the claim. The company had given no notification of its financial position, and had continued to collect the monthly premiums.
Two years on, the Ombudsman continues to investigate the situation. From a personal perspective the use of ADR in this situation has proved a particularly ineffective and lengthy process. However, as a 'one-shotter' (Galanter, 1974), or an individual who has previously had no involvement in the legal system, availability of an Ombudsman has proved beneficial, as the issue would certainly not have been pursued through more formal channels. The use of an Ombudsman does have the feel of 'second class justice' surrounding it as the parties involved do not have the opportunity to present their 'case', or voice their interpretation of events.
This could however be interpreted as a positive factor, as the power and experience that the insurance company has in such matters will be far superior than that of the 'one-shotter'. The lack of an appeals system and the huge amount of discretion an Ombudsman holds contributes to the feeling that it is a second class system, as the 'one-shotter' has little involvement in the process, and could do nothing if, for example, they believed bias influenced their decision. Arbitration is similar to the court system as it adopts a more adversarial position than other methods of ADR. The Court of Arbitration for Sport (www.
tas-cas. org), is a good example how far reaching and organised ADR can be, even on an international scale. An athlete may use the Court of Arbitration for Sport, if for example, they are contesting a ban they have been given by a sporting authority, following testing positive for banned substances. Essentially, each side presents their case and the arbitrator reaches a conclusion, which is binding. There is no right to appeal, unless there are exceptional circumstances. Arbitration can also be criticised from Galanters framework that the sports authorities, being 'repeat-players' are in a favourable position.
The use of an insurance Ombudsman and the sportsman fighting doping allegations through arbitration are mandatory procedures, and when mediation is enforced by a court, the opportunity for average citizens to bring their case through formal litigation procedures are slim, especially as the possibility of appeals are limited. ADR procedures do not usually involve either party having any legal representation in order to make the systems fairer and more equally balanced, suffers from the same inequalities as the formal court structure.
Those with more wealth or power, such as an insurance company or sports authority have unfair advantages that could result in the justice it serves being 'second class'.
Adams, J. N. and Brownsword, R. (1999) Understanding Law, (2nd edition) London, Sweet & Maxwell Stychin, C. F. (1999) Legal method Text and materials, London, Sweet & Maxwell Davies, K. C. (1976) Discretionary Justice in Europe and America, University of Illinois Press.