The Different Types of ADR - Essay Example

?Question Essay Plan ‘Prepare an essay plan for the question set in Question 2.’ Introduction The aim of the Introduction is to outline the key objectives and contents of the essay. This section will focus on the key points of coverage identifying and discussing the issues which a solicitor ought to consider before making a decision as to whether or not his client’s case is suitable for ADR. In summary, I shall therefore include a review of the different types of ADR and the advantages and disadvantages of litigation and ADR as a means of dispute resolution. Main Body The main body of the essay shall be titled “Civil Trial v. ADR”. This section will be separated into two distinct sub-headings, namely “The ADR Process” and “Civil Trial”. Under each respective heading a review of the advantages and disadvantages of litigation and ADR will be provided. The section titled “The ADR Process” will focus on exploring the issues which should be considered before making a decision whether or not ADR is suited to a particular case. This section mainly focuses on the Civil Procedure Rules 1998, particularly the overriding objective, which provides assistance in determining whether or not a case is suited to the ADR process. The section titled “Civil Trial” considers the advantages and disadvantages of litigation as a form of dispute resolution. Conclusion In the Conclusion, the findings will be summarised then an opinion shall be formed. This is in respect of what issues a solicitor should consider with a client before deciding if the case is suited to the ADR process. The conclusion refers to the main points in the Introduction and draws a close to the detailed points made in the main body of the essay. Question 2 Introduction Alternative dispute resolution (‘ADR’) is the term given to a variety of methods of resolving disputes other than by initiating court proceedings. Some examples of ADR are negotiation, mediation, arbitration, conciliation and adjudication. The various different forms of ADR vary considerably in terms of the procedure they adopt and the outcomes they are able to produce. For instance, arbitration is more akin to the court process, as it can produce a decision which is binding on the parties. Mediation, on the other hand, is more flexible in the approach which is adopted and the outcome can only be determined by mutual agreement between the parties. Irrespective of which form of ADR is used however, ADR now plays an important role in the English legal system. The important role ADR now enjoys largely results from a major review of the civil court rules and procedures in March 1994, which was carried out by Lord Woolf. The principal objective of the review was to improve access to justice, whilst reducing the costs associated with litigation, thereby making the system more lay person friendly by reducing complexities, and removing unnecessary differences between practice and procedure. The review resulted in the Civil Procedure Rules 1998 (‘CPR’), which came into effect on 26th April 1999. Albeit, even prior to the introduction of the 1998 Rules, it became apparent that ADR was going to play an important part in the new civil justice landscape. ADR is now an entrenched and integral part of the new civil justice system. The new civil justice system therefore operates on the premise that, inter alia, litigation ought to be avoided wherever possible. Where litigation is deemed necessary, however, Lord Woolf’s opinion was that the procedure ought to be less adversarial and more cooperative. ADR is a process that neatly fits into this new civil procedure framework. In fact, under the new CPR a party/person who fails to seriously consider ADR at the pre-trial stage could expose that party to a penalty at the costs stage of the litigation process. It follows therefore that legal representatives are under a professional duty to consider ADR, as an alternative to litigation, as a means of reaching an amicable settlement. Collectively all methods of resolving disputes outside courts of law, be it negotiation, arbitration, mediation or conciliation, are referred to as ADR, as noted above. When a dispute arises between two parties, negotiations may take place between the same to try to resolve the dispute. This process has many advantages, as it is quick, cheap and private. If the parties cannot come to an agreement themselves they may then instruct their lawyers to negotiate a settlement. Even when court proceedings have started, the lawyers often continue to negotiate a settlement on behalf of their clients and try to settle the dispute out of court. Mediation involves a neutral mediator supporting the disputing parties to reach a solution. The defining features of mediation are the use of a neutral mediator, confidentiality, dispute resolution in a neutral and safe venue, and the control rests in the hands of the disputing parties. Mediation can take many forms, including a formal settlement conference, mediation services (for example those from the commercial sector, AIMS or FMA), and victim—offender mediation. Conciliation allows the parties in a dispute to assert their views, share their feelings and try to find a mutually acceptable way of resolving the dispute. It is cost effective and quicker than a court case. The conciliation process enabled the offending party to learn about people with disabilities and their rights, and to make changes voluntarily. Conciliation subsequently offers an opportunity to voluntarily make changes that will benefit all future potential victims, not just the victim who participated in the conciliation. Parties to all kinds of contracts regularly favour arbitration as the means of resolving their disputes. An arbitrator’s decision delivers a certainty of outcome and the power of enforceability to the same extent that litigation does, but with the distinct difference that arbitration is a private, confidential and flexible means of dispute resolution, when compared with litigation. This essay is concerned with identifying and discussing the issues which a solicitor should take into consideration before deciding whether or not his/her client’s case is suitable for ADR. The main body of this essay is titled “Court Trial v. ADR”. Under this section, the main features of pursuing litigation and /or ADR are explored. It is the aim that the advantages and disadvantages of both forms of dispute settlement shall be investigated in order to discern under which circumstances ADR would be a preferred option for settling a dispute, as opposed to litigation. Court Trial v. ADR The ADR Process In Halsey v. Milton Keynes General NHS Trust [2004] EWCA Civil 576, Lord Justice Dyson remarked that ‘all members of the legal profession who conduct litigation should now routinely consider with their clients whether disputes are suitable for ADR’. He further stated, however, that it was not the court’s duty to compel, but to only ‘encourage’ ADR. This is because ADR is a strictly voluntary process. No party/person can be compelled to undertake ADR against their will. Notwithstanding this, the courts do have considerable powers under the CPR to ‘encourage’ the use of ADR. Albeit following the court’s ruling in Hurst v Leeming (2002) EWHC 1051, the courts now carryout out an objective assessment of whether or not ADR is appropriate in any given case, instead of encouraging its use. A party who fails to make use of ADR in those cases where it is deemed appropriate shall be subject to sanctions. For instance, the parties to a dispute are required pursuant to CPR to assist the court in furthering the overriding objective. This is borne out by the court’s obligations to actively manage cases. In accordance with the CPR, whilst seeking to actively manage cases the court may encourage ‘the parties to use an alternative dispute resolution’ procedure. Furthermore, CPR provides that cases must be dealt with justly, which includes, inter alia, that the parties are on an equal footing, that costs are reduced, and that cases are dealt with in a proportionate manner, which includes, amongst other things, dealing with them expeditiously and fairly. ADR is ideally suited to ensure that all these objectives are met. That said, the CPR does impose an obligation on the courts to ensure that civil proceedings also comply with these rules: see Susan Jane Dunnett v. Railtrack Plc (2002) 2 All ER 850. In general however, whilst considering whether or not ADR is suited to a particular case, a solicitor should be familiar with the overriding objective in order to consider which of the two; ADR or litigation, is more compliant. Both ADR and litigation must be compliant with the principles outlined in the overriding objective, and the CPR. The seriousness with which such a point is to be considered cannot be underestimated. As outlined above, and pursuant to CPR, r. 44(3)(4), the court is obliged to take into consideration the conduct of the parties when considering the award of costs. The worst offenders could be ordered to pay interest on costs for failing to seriously consider ADR at the pre-trial stage. It is therefore incumbent on solicitors to ensure that they consider whether or not ADR is suited to a particular case. Court Trial In the case of court proceedings, the general rule is that costs follow the event. Therefore the unsuccessful party bears the costs of the proceedings. However, as noted above, the court can make an exception to this general rule if it regards the conduct of the unsuccessful party ‘before, as well as during, the proceedings’ warrants such a move. Albeit, it should be noted that pursuing ADR holds no guarantees for either party and, therefore, the party who succeeds before the courts may find that they have incurred additional expense if a solicitor first chooses to pursue ADR, instead of the litigation route. A solicitor who is therefore representing a client who clearly has a strong case may regard this as a disincentive to pursuing ADR, and be swayed to opt for litigation instead. Despite such reasoning, in practice, the party in a stronger position could still raise these strengths during the ADR process to secure a more favourable outcome. In contrast to ADR, the court process is not confidential. This could be regarded as more beneficial in some instances as it lends a perception of transparency, and therefore fairness. ADR, on the other hand, is a confidential process and, in any event, if it does not achieve an amicable settlement it is still open to the parties to pursue litigation through the courts. A court trial could therefore be the preferred choice of a solicitor who is concerned about issues of independence and fairness. Furthermore, the court process provides the parties with a degree of finality as a court judgment is binding on the parties. This is not the case in respect of ADR decisions, which are non-binding. In addition, litigation follows a standard pattern. Therefore if a case is suited to this process, litigation should be pursued. Another important point for a solicitor to consider is whether or not it is in a client’s interests to pursue litigation in favour of ADR because of the potential availability of legal aid in the court process. ADR does not afford a client with such an opportunity. Another notable difference between litigation and ADR is the fact that litigation affords the parties with the option of allowing third parties to be joined to a case. In the case of arbitration, third parties are not permitted to join proceedings due to the privity of contract rule. This is unless the contract provides otherwise. More importantly, however, litigation provides the parties with an experienced decision-maker who can hone in on the salient issues in a case and make a decisive judgment. This is all the more relevant where the case turns on consideration of a point of law. In such instances, a solicitor may regard a legally qualified and experienced judge as far more able to deal with a client’s case than a person appointed to arbitrate, mediate or adjudicate on the matter. Conclusion Generally speaking, whether or not ADR is suitable for a particular case depends on the circumstances For instance, a solicitor who is representing a client who has a strong case may opt for trial to secure the best possible outcome for his/her client. This is because certain forms of ADR, such as mediation, presuppose that there are likely to be concessions made by both parties. Arbitration, on the other hand, results from the inclusion of an arbitration agreement in the contract. The scope of this process is therefore confined to the contractual agreement signed by the parties. Albeit, the parties do have a say on the procedural rules to be adopted by the arbitral tribunal and the appointment of the arbitrator/s. In certain circumstances, solicitors therefore often have very little say about the form of dispute resolution to be pursued. However, in circumstances where a solicitor does have a say, as in the case of civil disputes noted above; even when representing a client with a case with a good prospect of success, there is still a professional duty to give serious consideration to ADR, or his or her client could face a penalty. Albeit, as Lord Justice Dyson noted in Halsey, the court can only ‘encourage and facilitate’ the ADR process and not compel the parties to choose ADR. Therefore, whilst a solicitor is obliged to consider what is in his/her client’s best interests, a client must engage in the ADR process voluntarily. It is, however, of paramount importance that a solicitor considers ADR at the pre-trial stage as it affords a broader range of solutions than the courts have at their disposal, and is deemed to be a less expensive option than litigation. Question 3 The essay writing skills which I have employed ranged from legal research to legal analysis. I adopted the legal research skills whilst preparing the essay plan, as required at Question 1. This entailed carrying out some research using the Open University material. Once I had gathered sufficient information to write the essay, I formulated a plan as detailed in Question 1 above, this formed the basis for the structure of the essay. Whilst writing the essay I implemented my legal analytical skills, particularly whilst writing the main body of the essay titled “Civil Trial v. ADR”. This involved considering the advantages and disadvantages of litigation compared with those of ADR. Word Count: 2,398 Bibliography Text Book: W100 Open University Block 4, Unit 14 Reader 2, 17,22,23 Case Law: Halsey v. Milton Keynes General NHS Trust [2004] EWCA Civil 576 Hurst v. Leeming (2002) EWHC 1051 Susan Jane Dunnett v. Railtrack Plc (2002) 2 All ER 850 Read More