The advantages and disadvantages of using alternative dispute resolution

The problems associated with court proceedings in civil cases are well documented. Lord Woolf, in his report, Access to Justice (1996), was highly critical of the then civil justice system.

Grade: A-C | £0.00.

The problems associated with court proceedings in civil cases are well documented. Lord Woolf, in his report Access to Justice (1996), was highly critical of the civil justice system operating at the time. He took the view that civil court proceedings could be unequal, slow, expensive, uncertain and complicated.

To prosecute or defend proceedings in the civil courts can be very costly.  There is the matter of court fees as well as solicitor’s fees and, in some cases, barrister’s fees.  There can be a considerable amount of preparation work as the system focuses on the trial, and this may include the preparation of witness statements, expert evidence and reports and drafting complex claims and particulars of the claim.

Once legal proceedings have commenced the parties themselves are no longer in complete control of the action as others become involved.  This can cause a delay.  These delays can come from such matters as the need for detailed instructions from the client, communications between legal representatives and the availability of counsel to advise and draft legal documentation.  Court staff and officials also need to action and process the appropriate paperwork.

The court proceedings are very formal.  They involve precise written claims, supporting legal arguments.  The same can be said for defences.  There are pre-trial hearings and applications for directions with strict time limits.  This makes it difficult for an unqualified person to follow and understand.

The system is adversarial in nature.  This means that the parties are each represented by legal representatives whose sole interest is to advance their client’s case.  It is about winning and not losing so there is very little incentive to co-operate.

Another problem of court proceedings is that they can be very complex.  Both the High Court and County Court have their own sets of rules that have to be followed, otherwise the parties risk applications to strike out their case for non-compliance.  The rules relating to costs allowed are difficult for lay people to understand.  The timetables are applied strictly by judges.  This can be illustrated by the case of Vinos v Marks and Spencer PLC (2000) where a claim was struck out by the court due to the late service of the claim (9 days).

Finally, it could be argued that the courts are not always fair in the way it treats litigants. To pursue a case to appeal for example would be very time consuming and expensive.  Commercial litigants such as insurance companies and banks and building societies have considerable resources at their disposal and this may mean that they are able to take full advantage of an individual who may have problems in funding their case.  Delay and expense are likely to operate against individuals and commercial litigants will know this.

There are a number of advantages to using one of the methods of
alternative dispute resolution (ADR) and under the Civil Procedure Rules it is generally expected that the parties should have considered the use of ADR before commencing court proceedings. It is the duty of the court to consider, at every stage in proceedings, whether alternative dispute resolution is appropriate.

The advantages of ADR are:

Cheapness – The relative cheapness of ADR in comparison with the Courts is advantageous. Costs normally associated with court proceedings such as court fees, delays and having to follow complex court processes are not incurred with ADR.

Speed – The use of ADR is much quicker. In particular one of the quickest and cheapest methods of ADR is negotiation and this is because parties get round the negotiation table themselves to solve the dispute without the need for representatives.

Control – With ADR the parties retain control over the dispute and the way it is resolved rather than handing over control to the Courts. There is a saying with litigation in the courts to the effect that once started no matter how sure you are of the merits of your own case, there is no knowing when it will end.

Adversarial – Court proceedings are adversarial and about winning not losing, whereas ADR is about finding possible solutions to disputes. As the proceedings are in private it can be a damage limitation exercise and this can be important if the parties expect to do business with each other in the future.  ADR can avoid bad feeling between the parties.  

Privacy – Court proceedings are conducted in public. The press is admitted and it is possible for the case to be reported in the local or national newspapers.  A clear advantage of ADR is that the methods used are private and again this may be an important factor if commercial reputations are at risk.

Expert Arbitrators – With court proceedings the Judge may be an expert in the area of law involved but is not likely to be an expert in building or civil engineering or whatever the subject of the dispute is about.  The judge relies upon facts being presented to him or her following detailed and expensive trial preparation.  Expert witnesses may well be necessary and this will inevitably contribute to the length of the trial and the overall cost.  When expert arbitrators are used they do not rely upon expert evidence in the same way, this means that the proceedings are usually quicker and cheaper.


There are a number of disadvantages associated with ADR these are:

Willingness to compromise
– The use of ADR is dependant upon the willingness of individuals to compromise and to this extent it is arguable that the parties are more likely to settle for less whereas once they have embarked upon court proceedings their expectations may be higher. It could be that one of the parties does not accept there is a problem and is not prepared to compromise.

Uncertainty – Although ADR is generally quicker and cheaper this is not always the case.  Even negotiations can drag on and become lengthy and expensive with no certainty of a resolution of the dispute.  At least with court proceedings there is usually certainty.

Complexity and Expense – Generally ADR is cheaper than using court proceedings but some formal arbitration hearings can still be complex and expensive depending on the subject matter of the dispute. There are professional and trained arbitrators and these can be expensive.

Making a statement – Because ADR is confidential they are unsuitable if one party wants to make a point and put out a clear warning or send out a message about the proceedings and their outcome.

Immediacy - ADR is not suitable where one party wants the other to stop instantly. This could be in the case of one party wanting to prevent another from selling goods which are of a similar design to something they are selling or in the case of harassment.

Time limits – It is worth remembering that if there is a time limit involved in a legal claim it may not be appropriate to use ADR. It does not put a stop to any legal time limit and may mean that, if unresolved, the time to make a legal claim has passed.

The courts now encourage the use of ADR as a result of the Woolf Reforms. Judges can stay proceedings to give parties the opportunity of exploring whether ADR might be of a possible benefit. In fact the Centre for Dispute Resolution has reported that there is a growing trend for Judges to stay proceedings. In 2000, 27% of disputes the Centre dealt with had been stayed. This compared to 19% in 1999 and only 8% in 1998.

The availability of ADR means that the use of these various methods can free up the courts for essential cases where ADR is inappropriate. The result being that the use of ADR has an impact upon vital resources and the effectiveness of civil courts. Many would argue that Lord Woolf should be commended for helping to identify the advantages of ADR and encouraging its greater use.



(Word Count 1325)

Alternative dispute resolution: the court's ... - Ministry of Justice

The Civil Courts and other forms of dispute resolution - arcade games quiz

Conciliation

Mediation

Arbitration

Negotiation

CEDR : Effective Dispute Resolution

 

 

This essay discusses the problems of bringing civil proceedings in the civil courts.  The work of Lord Woolf is also mentioned.  It talks of court proceedings being unequal, slow, expensive, uncertain and complex and gives practical examples of these problems. 

The essay then goes on to identify the advantages of using ADR (Alternative Dispute Resolution): cheapness, speed, control, non-adversarial, privacy and the use of experts.  The work gives practical examples of these advantages. 

The essay identifies a number of disadvantages: willingness to compromise, uncertainty, complexity and expense and gives practical examples of what this might mean in individual cases. 

Finally the essay talks about the increased use of ADR and the power of judges to stay proceedings whilst the use of ADR is explored. 

The essay refers to the case of Vinos v Marks and Spencer PLC (2000).

Organisations such as the Centre for Dispute Resolution and their influence are also raised.

This is an important study area and potential examination area for the purposes of A/S Law.

 

 

 

 

 

Related Items

The items below list this Essay as being related in some way.

Tags

There are no related tags.

Amazon's recommended Books

RSS Feeds