The Role Alternative Dispute Resolution

INTRODUCTION

Hit by the winds of change, the current Civil Justice landscape of the United Kingdom has been a subject of constant and comprehensive reforms, amongst which the most promising one has been the increasing reliance on the alternative dispute resolution mechanisms, that are believed to have the potential of saving the scarce judicial resources. Courts, representing the judicial arm of the government, have ever since been clogged by the protracted, confrontational and expensive litigation process. As a result, thereof, Alternate Dispute Resolution (ADR), has become the focal point of the civil justice reforms, that aim to reduce the cost, complexity and delay in the justice delivery system in the UK. A step was taken ahead by the Access to Justice: Final Report, prepared by Lord Woolf upon a review of the English civil justice system in 1996, that proposed solutions for effective case management and promoted early settlement

Not every civil dispute may reach the court rooms nor is it always appropriate to seek redressal through court proceedings. The range of Alternate Dispute Resolution (ADR) mechanisms available to the parties are considerable and can potentially suit the facts and finances of one’s claims more fruitfully than ordinary court procedures.

This view is well endorsed by the Civil Procedure Rules that confer jurisdiction on the Courts to order parties to seek redressal of their disputes through ADR before resorting to litigation and also to impose costs where parties refrain from ADR and proceed to litigate. Over the years, the judiciary as well as the government in UK have sanctioned greater use of ADR so as to ensure effective and timely relief to the justice seekers.

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This article attempts to analyse the ongoing shift taking place in the UK Civil Justice system, which once dominated by the adversarial court system, has been now placing great emphasis on the use of alternate dispute resolution mechanisms for resolving the civil disputes. The aim is to map out the different ADR models and assess their relative advantages and disadvantages in different contexts.

WHY ADR?

Alternate Dispute Resolution (ADR) embraces a spectrum of mechanisms aimed at bringing about an effective and expeditious resolution of disputes without resorting to conventional court processes, that are congested, costly, complex and time consuming. Such ADR techniques are both ‘decisional’ i.e. where a neutral third party determines the disputes between the parties, as well as ‘facilitative’ i.e. where the neutral third party facilitates the disputing parties in resolving their disputes. In the words of Brown, all ADR techniques are unified in a sense that ‘they serve as alternatives to litigation through courts and ‘they generally involve the intercession and assistance of a neutral and impartial third party’.

NEGOTIATION: an informal process of dispute resolution whereby parties resolve their differences by themselves. Negotiations offer great flexibility, party autonomy and confidentiality, besides saving time and relationships;

MEDIATION: the most common form of ADR wherein the parties engage in a privately structured facilitated negotiation, assisted by a neutral third party called the mediator. However, mediator cannot impose his own personal views upon the disputants or take any decision as parties reserve their right to approach courts if disputes remain unresolved;

CONCILIATION: commonly used in family and employment disputes, wherein the neutral third party called the Conciliator, who is appointed by an outside body, assists the parties by suggesting possible settlement options;

EARLY NEUTRAL EVALUATION: a neutral third party assists the potential disputants by providing a non-binding opinion of the possible outcome of the dispute if subjected to trial;

ADJUDICATION: well established dispute resolution method in the construction industry, governed by the Housing Grants, Construction and Regeneration Act, 1996. Award of the neutral third party, called the adjudicator, is enforceable and binding on the disputing parties until another process is invoked;

ARBITRATION: governed by the Arbitration and Conciliation Act 1996, it is a formal dispute resolution process that gives greatest autonomy to the parties, besides confidentiality and flexibility of the procedure. The disputes are resolved through an independent arbitrator or an arbitral tribunal constituted by the parties on the basis of an agreement. The award passed by the arbitrator is legally binding on the parties, with minimal scope of challenge. Arbitration is the most preferred mode of dispute resolution for complex commercial disputes, both national and international, requiring determination by an expert in the same field;

EXPERT DETREMINATION: an informal dispute resolution process wherein an independent expert, appointed by the parties, renders a final and binding decision on some specific technical issue.

Other common forms of ADR, that are more industry specific, involve dispute resolution through Dispute Resolution Boards, Ombudsman, Executive tribunals etc.

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In the modern commercial world, disputes are inevitable, and thus regard must be had to the mode of arriving at an efficient and expeditious resolution of the conflicting interests. Litigation should be treated as the last resort for dispute resolution as it only leads to unnecessary delays, rapid escalation of costs, inefficiency and adverse relationships. ADR on the other hand, reduces the misery with its inherent benefits of saving time, costs and parties’ relationships. Although ADR may not be suitable a recourse to redressal for every kind of dispute, yet it makes out a powerful case of preference. Serving as an alternative to the traditional courts, ADR not just benefits the disputing parties but also increases efficiency of the court system in administration of justice, by reducing the caseloads. Therefore, the diversion of disputes from public adjudication to private dispute resolution holds promising potential of increasing access to justice for the citizens of the United Kingdom, in the time to come.

As the exams are round the corner, I propose to begin my curriculum revisions in tune with the revision schedule, that details the percentage of syllabus to be covered each day and the amount of time to be invested therein. In order to revise a particular subject, the only best way I consider adopting is to prepare brief notes of the all major topics discussing the most essential ingredients in the form of pointers. Such notes can be kept handy for prompt revisions at any time of the day and can reduce considerable amount of information into short memory triggers. I have also prepared a timeline for each day that spreads over short revision periods and is briefly summarized as under:


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