Module 10 - Access to justice (C10, C17) Flashcards
What does ADR stand for?
Alternative Dispute Resolution
What is ADR?
ADR refers to methods of resolving legal disputes without going to court.
> Includes negotiation, mediation, conciliation, and arbitration
> Often quicker, cheaper, and less formal than litigation.
What is the problem with court proceedings?
- Using courts can be costly in both money and time
- Court can be a traumatic experience and the result may not produce justice
- Proceedings are open to the public and press
> Individuals and businesses are seeking alternate methods more regularly
What happened in the 1990s surrounding ADR?
WOOLF Report (during the 90s); this was a report aimed to address the criticisms of the civil justice system (i.e. high costs and delays)
What did the WOOLF report eventually lead to?
Led to the Civil Procedure Rules (CPR) in 1999; for example, this allows judges to ‘stay’ court proceedings temporarily to allow for ADR to take place
What Act was introduced in 1999 surrounding ADR?
Access to Justice Act 1999
What did the Access to Justice Act 1999 intoduce?
Brought new ways of assessing whether a litigant should be funded (likely to encourage ADR as it looks for alternative dispute resolution to save public funds)
What are the four main types of ADR?
Negotiation
Mediation
Conciliation
Arbitration
What is negotiation?
Anyone who has a dispute with another person can always attempt to resolve it by negotiating directly with them; this is negotiation
Disadvantages include: can be costly if lawyers involved (and longer negotiations means higher cost); cases can drag on for years and reach a settlement ‘at the door of the court’ (i.e. morning of trial)
What is a main use of negotiation?
Child custody cases.
What are the advantages of negotiation?
- Completely private
- Quickest and cheapest method of ADR
- Solicitors can negotiate on the behalf of clients
What are the disadvantages of negotiation?
- Can be costly if lawyers involved (and longer negotiations means higher cost)
- Cases can drag on for years and reach a settlement ‘at the door of the court’ (i.e. morning of trial)
What are some mediation services?
Mediation services; growing number
> West Kent Independent Mediation Services (run by impartial volunteers with a meeting between each party; parties are in control)
> Examples include CARCASS Children issues / CEDR for companies
What is mediation?
Mediation is where a neutral mediator helps the parties reach a compromise; they consult with each party, find common ground, explore each position, and recommend a decision
> A mediator will not usually tell the parties their own views, but can be asked for his opinion
What is one major problem with mediation?
Mediation is not legally binding; can be broken with no repercussions; however, future cases on the same topic can be impacted based on this
What are the many advantages of mediation?
- Mediation is flexible (can choose exact type of mediation wanted)
- Parties are in control and make the decisions
- Saves a great deal of money (usually around £1,500; court case can be as much as £100,000)
- Decision can be based on common sense and compromise, not the law
- Allows for future relations; parties are more likely to settle
- Helps to narrow down matters; trial will be shortened
- Avoids the winner/loser result of court proceedings
What are the disadvantages of mediation?
- No guarantee the matter will be resolved (may have to go to court)
- Amounts paid in mediated services often lower than in court
- Mediation requires a skilled mediator (can be difficult with an inexperienced mediator, leading to bias/a poor result)
What is conciliation?
Conciliation is incredibly similar to mediation; a neutral third party helping to resolve disputes
> Instead, the conciliator plays an active role, suggesting grounds for compromise and putting their own substantiated but subject views; suggests possible bases for settlement
What is one major problem with conciliation?
Conciliation is also not legally binding; can be broken with no punishment or enforcement
What are some examples of conciliation?
- Energy Charter Treaty offers a conciliation procedure for transit disputes
- ACAS can support before an industrial tribunal)
What are the many advantages of conciliation?
- Saves a great deal of money (court cases can go up to £100,000)
- Decision can be based on common sense and compromise, not the law
- Allows for future relations
- Helps to narrow down matters; trial will be shortened
- Avoids the winner/loser result of court proceedings
- Parties are more likely to settle
What are the disadvantages of conciliation?
- No guarantee the matter will be resolved, may have to go to court anyway
- Additional costs and delays could occur
What does “Access to Justice” actually mean?
Ensuring that individuals have the ability to resolve legal disputes effectively, whether through courts or alternative methods, regardless of financial or practical barriers.
What is litigation?
The process of resolving disputes through the court system, leading to a formal, legally binding decision. It is often time-consuming and expensive.