Chapter 6: Alternative Dispute Resolution Flashcards
What is the definition of Alternative Dispute Resolution?
Where can this be found?
Defined in the glossary to the Civil Procedure Rules
A “collective description of methods of resolving disputes otherwise than through the normal trial process.”
What are the areas of litigation/cases that ADR can be used for?
Only used in the civil justice system
- Family cases
- Consumer cases
- Commercial cases
- Construction cases
- Employment cases
What is the aim of ADR?
Avoid cost, formality, time-consuming, adversarial and intimidating nature of court cases
What are the 4 types of ADR?
A.M.C.N
- Arbitration
- Mediation
- Conciliation
- Negotiation
What is Arbitration?
What is it generally used for?
Introduction
- Where both parties agree to let a third party (the arbitrator) decide
- May be a lawyer or an expert in the field of dispute, which they will decide according to law and the decision is legally binding
- Mixes adversarial and inquisitorial approaches
Generally
- Usually held in private
- Usually used for commercial disputes (i.e. construction disputes)
- Where time is very important, and the completion of the project can’t be delayed
What is there to note about arbitration that other ADR methods don’t have?
- Where there is an agreement in contract, Arbitration Act 1996 states that courts will refuse to deal with any dispute
- Arbitration is the only method that is written in statute
What is mediation?
What is the process and what cases is it usually used in?
Introduction
- Both parties pay to appoint a mediator which helps reach a dispute which each find acceptable (mutually agreed settlement or assisted settlement)
- The mediator is an independent body
Process
1. Mediators encourage progress in negotiations but tend not to give opinions about the dispute
2. They give an onus to the parties to reach a solution on their own
3. For a successful mediation, both parties have to be willing to give and take
4. Once the agreement is reached, it’s written down and becomes a legally binding contract (unless parties state otherwise)
Generally
- Applies to resolve conflicts within families (i.e. divorce cases, commercial disputes)
What is conciliation?
What is the process and what is there to note about this?
Introduction
- Third party takes an interventionist role in the dispute, to push them in the direction of a settlement
- Conciliator plays a more active role than mediator
- Resolving a dispute often depends on the skill of the conciliatory and the willingness of parties to cooperate
- The ‘conciliator’ that acts in industrial disputes has a high-profile conciliation role as the - Advisory Conciliation and Arbitration Service (ACAS)
Process
- Expected to suggest grounds to compromise and possible settlement
Note
- Conciliation is slowly decreasing in use and regarded as a form of mediation
What is negotation?
Where is it generally used?
What is there to note about this?
Introduction
- One of the simplest forms of ADR
- An informal negotiation between the parties, with or without help of lawyers
- A quick, confidential and cost-effective way for small-scale local matters
Generally
- Applies to neighbours, customers, or shopkeepers
Note
- A lot of civil cases settled outside of court are just by negotiation
What is the name of the Rule that promotes the use of ADR?
Civil Procedure Rules
What are the 3 things that the Civil Procedure Rules promotes ADR?
1) Pre-action protocols direct the parties to consider ADR
2) Active case management under Civil Procedure Rule 1.4 states
* “… encouraging parties to use an ADR procedure (if the court considers that appropriate) and facilitating the use of that procedure.”
3) When filling out the Allocation Questionnaire, parties are invited to apply for a 1 month stay of proceedings to explore different ADRs
* CPR 26.4 - Allows courts to grant a stay settlement by ADR or other means when one party requests for it or when court deems appropriate
* CPR 44.5 - States that if parties fail to use ADR where court deems appropriate
* They are penalised through cost order
Result
- Thus, parties have to genuinely attempt to resolve their dispute through ADR
- Rather than just paying a lip service for the sake of it
What are the 2 cases that state how to avoid using ADR?
What are the 2 ways that are stated in each case?
Hurst v Leeming [2002]
- Court held that when mediation can have no real prospect of success then the party can refuse to use mediation
Halsey v Milton Keynes General NHS Trust [2004]
- COA stated that courts don’t have the power to force parties to try ADR
- As this would be a breach of Article 6 ECHR
- “It is one thing to encourage the parties to agree to mediation, even to encourage them in strongest terms. It is another to order them to do so. It seems to us that to oblige truly unwilling parties to refer their disputes to mediation would be to impose an unacceptable obstruction on their right of access to the Court.”
What are the cons of using courts instead of ADRs?
1) Expensive & time consuming
* Legal representations can delay and also be expensive
2) Inflexible
* Rules of procedure in court lay down fixed frameworks for which problems are addressed
* ADR lets the parties have more freedom as to the process of finding a solution
3) Formal, complex, and hard to comprehend for parties
* Parties may not know and find hard to understand the proceedings in court
4) Adversarial process may not lead to desired outcomes by parties
* Trial only results in a winner and loser
* The atmosphere in trial is often aggressive and pushes parties into becoming enemies which may not be intended
* This may hinder the parties relationship which could cause other underlying problems in future (i.e. divorce cases)
5) Not private
* Most hearings are public
* This may be undesirable for some business disputes where both may prefer details of their financial situation to be disclosed
6) Technical cases
* Some cases require knowledge on a certain subject matter which are more technical rather than on points of the law
* Which sometimes may not be readily understandable for an ordinary judge
7) Imposed solutions
* Courts may impose solution on parties which may not involve their consent as it’s legally enforce/binding
What are the 9 pros of using ADR as an alternative?
1) Greater control by parties
- Party’s have better control on the proceedings and the outcome of their dispute (mainly conciliation/mediation)
2) Quicker and cheaper
- Oftentimes don’t even need legal representation which makes it cheaper
- But even if it involves lawyers, this makes it quicker and chapter rather than going to court
- As research by Professor Genn (1998) found that mediation was able to speed up the settlement process
- 62% of mediated cases are settled at the mediation appointment
3) Less formal and simpler procedures
- Compared to court proceedings are way more easy going and easy to understand
4) Avoids potential conflict
- ADR allows a chance for the parties to reach a agreed upon solution while preserving any business or family relationship
5) Private and voluntary
- Unlike hearings, mediation and conciliation are private between parties
- Even so, the process is voluntarily entered into by the parties seeking to resolve their dispute without prejudice basis
6) Commercial common sense & compromise
- Decision doesn’t have to be strictly legal, the decision is likely to be commercial common sense based (i.e. giving away shares)
7) More accessible
- ADR allows for a more informal procedure with less without the need for complicated rules or evidence
- Which makes the process less stressful or intimidating
8) Expertise
- The people who run ADR schemes are often specialist in the area with the needed knowledge to resolve the case
- Which also leads to a quicker settlement
9) Customer satisfaction
- Research by Hazel Genn (2002) found that ADR generally results in higher level of customer satisfaction
What are the 6 cons of using ADR as an alternative?
1) Lack of legal expertise
* The respective 3rd parties may not have the required legal expertise to judge the question at hand
2) Doesn’t revolve around legal rights
* It approaches legal ‘problems’ as any ordinary issue that has a solution
3) Lack of precedent
* Determined by parties to achieve a settlement/solution based on facts
4) No system of precedent
* On doctrine of precedent to follow, each case is a new issue that is seen for the first time
* Judged on merits, providing no real guidelines for future cases
5) Enforcement
* Decisions not made by courts may be difficult to enforce
6) Low utility rate
* ADR has not seen good numbers as much as expected when the Woolf Reforms introduced it
What are the 3 reasons why Lord Woolf ecourages ADR?
1) Court hearings aren’t always the best way to resolve a dispute, and the cons may not be suited for some individuals. Which lies in other alternative methods which are more effective/suitable
2) ADR is cheaper, less formal, time efficient, and avoids the adversarial & intimidating nature of the courts
3) Courts are actually the last resort for any litigant
- According to Michael Zander in Chapter 2 of The State of Justice: “A pictorial representation of civil disputes is like a pyramid with the base representing the tiny proportion that reach a court, with the body of the pyramid representing the infinite variety of ways in which such problems have been dealt with by the citizens with or without advice from others and whether not involving legal proceedings. The civil justice system is brought into play in only a small proportion of all these disputes.”
- The amount of cases that go to court are actually very little
What was the 2 research condcuted that supports Lord Woolf’s reasons to enoucrage ADR?
What was concluded in these tests?
Research
1) Oxford Socio-Legal Centre
- Found that 1700 accidents where victims suffered physical injuries
- Only 14% made claims and 12 % obtained damages
- Only 5/1711 victims actually went for a court hearing
2) Lord Clarke in his speech Mediation - An integral part of our litigation culture
* 98% of cases are resolved before actually going to trial
Conclusion
- Generally people’s view of the civil justice system is distorted as trial cases represent only a small fraction of cases
- The large volume of cases are solved outside of court through ADR (mainly by arbitration or mediation)
How was the usage/success rate of ADR after the introuduction of the Woolf Reforms?
What were the 2 findings/research for this?
Introduction
- After the Woolf Reforms of the CJS, the Civil Procedure Rules encourage the use of ADR as well
Low usage of ADR
- Even though ADR meets many principles of the civil justice, as well as it being convenient & sometimes free, they are still exceptionally low utilisation of ADR
FIndings
1) LC’s Department, Further Findings: A Conditioning Evaluation of the Civil Justice Reforms (2002)
- Found that after the initial rise in usage of ADR in the introduction of the Civil Procedure Rules 1998
Now the usage of ADR has become stale & levelled off
2) Hazel Genn’s (2002)
What were the key findings in Hazel Genn’s (2002) research done on the usage of ADR after the introduction of the Woolf Reforms?
Results
- ‘The profession remains extremely cautious about the use of ADR. Positive experience of ADR does not appear to be producing armies of converts.’
3 reasons for refusal of ADR for commercial court
- Judgement was required for policy reasons
- Appeal turned on a point of law
- History or behavior of the ‘opponent’
2 reasons for refusal of ADR at COA stage
- Case was not appropriate for ADR
- Parties didn’t want to try ADR
Prof Hazel Genn’s recommendations following Woolf Reforms
- The increased number of pre-trial settlements mean that **less people feel a need for ADR for ‘run of the mill’ cases **
sucess of ADR after Woolf Reforms
Despite the ‘sucess’ after the Woolf Reforms, what is the future for ADR?
What are the 4 things that the government is trying to focus on for the future of ADR?
Expansion
- ADR is likely to play a significant role in solving disputes. It’s likely that UK will expand similar to other countries that are trying to take ADR more seriously than before
Public funding
- Government said in explanatory notes to Justice Act 1999 that slowly they will extend public funding to enhance ADR
Awareness
- Government also trying to promote ADR as they are drawing up plans to spread awareness and are intending on launching a wide-ranging awareness campaign**
**
Governmental disputes - As government tries to promote ADR, government legal disputes will use ADR whenever possible
- Government department only go to courts as a last resort
What are the 2 ways to increase the use of ADR?
More **individualised approach **
- Hazel Genn said that an individualised approach instead of general invitations at an early stage of the litigation process will be better
- This would need a clearer development of selection principles
Better timing & directions
- The initial stages of proceedings might not be a good time to introduce ADR
What are 4 examples of ADR in practice?
1) Mediation in divorce cases
- Court system is not fit for divorce cases as the adversarial nature of the system can aggravate parties
- The Family Law Act 1996 makes changes to the divorce laws which emphasises on mediation better
2) Trade association arbitration schemes
* The Fair-Trading Act 1973 states that the Director General of Fair Trading has a duty to promote codes of practice for trade associations
* Which many are provisions for an initial conciliation procedure (this means that ADR is directly promoted in the statute itself)
3) Commercial arbitration
- Many commercial contract have arbitration agreements, which requires them to refer to arbitration before taking the matter to court
4) COA mediation scheme
- COA has a voluntary mediation scheme which sends a letter to the parties, inviting them to enter mediation before appealing
- Since 1999, if parties refuse mediation, they must give a reason for it
Hazel Genn states that the 2 issues about civil justice is that there is not enough acess to justice and the flootgates of litigation..
What are Dane Hazel Genn’s 5 main critisim of mediation?
1) Undermines the CJS
* Dame Hazel’s lecture shared her view that ADR is downgrading and degrading the civil justice
* Claimed that it was all Lord Woolf’s fault
2) Purpose just to divert litigations
* She stated that the current civil justice reforms are neither about more access nor justice, merely a way to divert cases away from the courts
3) Capitalist schemes
* “The push for less law is supported by the growing ADR profession which professes a mission to rid society of conflict, but which is more interested in the profits to be made from large commercial dispute settlement than the small change of the county courts,”
4) Saves public money
* She said it was an excuse to save public money. As the criminal justice system had already spent a lot, they try to save on the civil side of justice
5) Breach of Article 6
* Hazel Genn states that making ADR compulsory would lead to a breach to the right to fair trial
* Which confers an unacceptable pressure on the parties by the courts to adhere to
What was Lord Woolf’s 4 responses to Hazel Genn’s critisim to ADR?
- He agreed with the increased cost as he stated it was getting worrying
- However, he said that his job was not to reduce the costs, but to improve civil litigation
- He also shared his disagreements with the governmental policy making the civil justice self-financing
- Lasty, his views were that if ADR were functioning properly, it would help to achieve justice
Regarding Hazel Genn’s critism to ADR…
What the 6 arguments that Lord Clarke (in his speech - An Integral part of our Litigation Culture) raised in defending the use of ADR?
1) No reason to not want it
* Mediation allows to endanger settlements (allows for more dispute options), which would be silly not to want
2) Lack of education
* The reason why mediation is not really used might be due to lack of education by lawyers, judges, and even clients
3) He thinks that Hazel Genn misunderstood it
* Clarke thinks that Genn saw it as a way to replace formal justice, but that is not the case
* It is effective, efficient, and accessible for the CJS
4) ADR is an important supplement
* Lord Clarke thinks that the existence and value of the CJS is not threatened by any means
* ADR is a good supplement to allow availability to everyone
5) Heilbronn and Woolf never saw it as a replacement
* Both of them were emphasising various methods and how ADR should be encouraged, and was clear that it would be an important supplement to assist with the cases that arrive before courts
6) Allows justice to be done
* In the future, formal litigation, ADR or mediation will not be all that there is
* Lord Clarke’s view is that it is merely a good way to supplement and facilitate access to justice for many, which makes it so effective
1996 and 2001 the voluntary uptake of mediation still remained low. Since 2002, there have been more cases that clarify the use of mediation regarding civil and commercial cases…
What are the timeline of the 5 cases that changed the principles of how ADR must be conisdered?
Cowl v Plymouth City Council [2001]
* Lord Woolf stated that parties are required to consider ADR before starting legal proceedings
* Especially where it involves money
Dunnett v Railtrack Plc. [2002]
* COA stated that Railtrack’s refusal to contemplate mediation would result in denied of legal cost
Halsey v Milton Keynes General NHS Trust [2004]
- COA held that there should be no presumption to take mediation
- And it is required for there to be a real purpose for mediation succeeding before a party actually gets denied legal cost
Thakkar v Patel [2017]
* Jackson LJ in COA stated that “in a case where bilateral negotiations fail but mediation is obviously appropriate, it behoves both parties to get on with it. If one party frustrates the process by delaying and dragging its feet for no good reason that will merit a costs sanction.”
Churchill v Merthyr Tydfil CBC [2023]
* Churchill v Merthyr is inclined towards a greater reliance on ADR compared to the Halsey approach. An order for the parties to attempt ADR can be justified even in cases where it is against the parties’ wishes.
These are in chronology
What is the current new developing ADR?
Online Dispute Resolution - Online Court
ODR
What is Online Dispute Resolution?
What is there to note about ODR?
Introudction
* ODR is a type of dispute resolution carried out online to dispute cases
* Uses mixture of online tools (Zoom or Microsoft Teams)
* Additionally, it involves a 3rd party to assist in the dispute resolution process
Note
* Some cases within jurisdiction are compulsory to ODR
* (this excludes cases that are complex & of public importance)
What are the 4 types of cases that are excluded from ODR?
- Case that involve personal injury (PI)
- Small intellectual property
- Possession of homes
- Housing despair claims
What are the 3 stages to ODR recommended by the Interim report?
Stage one
1. An automated triage stage, designed to help litigants without lawyers articulate their claim so that courts can resolve
2. Helps them to upload key documents and evidence
3. However, this step can be skipped if the party has a lawyer, but will still be necessary to generate claims suitable for online court
Stage two
- A conciliation stage managed by a ‘case officer’
- Case officers help the judges deal with routine work to free up judicial time
- They are required to have a certain level of legal qualification and experience
- Briggs LJ says they usually work very close with the judge, often in the same office space
Stage three
- Determination stage where the disputed cases can’t be settled are to be decided by the judge
- Face to face trial, video, telephone hearing
