Alternative Dispute Resolution
Since time immemorial the decision of the English Courts depended upon the methods of litigation. In this regard, it is noteworthy to mention here that the process of litigation is time consuming and quite expensive. In order to address civil disputes it was essential to establish the method of Alternative Dispute Resolution. Much faith has been laid on the method of Alternative Dispute Resolution after it gained considerable success. In Kinstreet Ltd v Belmargo Corp Ltd the rules of Civil Procedures vested an opportunity on the judges to apply the method of Alternative Dispute Resolution if the matter can be solved by eliminating the long process of litigation. With the advent of Civil Justice Reforms the English Courts highly recommended that disputes can be solved with the application of Alternative Disputes Resolution. In this regard, the essay is commissioned to examine the importance of methods of Alternative Dispute Resolution in the English legal system by introducing its forms along with its advantages and disadvantages.
From the very beginning the concept of Alternative Dispute Resolution has been significantly defined as a strategy in resolving disputes arising out civil disputes in order to act as an alternative to the primitive methods of litigation and adjudication in United Kingdom. In this regard, it is noteworthy to mention here that the adjudicator must possess required professional skills in order to resolve disputes efficient because the proceedings of litigation are regulated by law and therefore there can be a major difference in flexibility. According to modern jurists, alternative dispute resolution proved to be efficient in solving civil disputes efficiently and thereby individuals opted for such alternative over litigation. During the era of formal legal systems, the English Courts were overburdened with various cases. In order to address such issues, the method of Alternative Dispute Resolution emanated in order to replace the traditional methods of dispute resolution.
In this regard, the methods of alternative disputes resolution can be emphasized which are arbitration, negotiation, adjudication, conciliation and mediation. The process of arbitration requires the involvement of a third party as an Arbitrator in order to solve the issue timely as compared to litigation. The proceedings of arbitration are formal and confidential. In case of arbitration, the decision comes in the form of an arbitral award which is binding upon the parties. However, the process is much cheaper and less time consuming and can be relied upon. In Premium Nafta Products v Fili Shipping it was held by the House of Lords that disputes can be solved through the process of arbitration by eliminating the traditional method of litigation used by the English Courts. However in Dunnett v Railtrack plc (2002) the method of arbitration was refused by the defendant Railtrack without even foreseeing the consequences which can occur as a result of it.
According to modern authors, mediation is structured within the framework of Alternative Dispute Resolution which requires the involvement of a mediator as a third party in order to provide assistance to parties in dispute. However, the decision taken by such mediator is not binding upon the parties. In case of adjudication, it requires the intervention of a neutral third party. It is noteworthy to mention here that such neutral party is at the authority to impose an award which is binding upon the parties to dispute. However, in case of adjudication, the binding decision is not final and such decision can be presented for further appeal. Conciliation is the process in which the objective is to bring the parties to dispute together in order to reach a final decision by compromising. It is noteworthy to mention in this regard that the process of conciliation was mostly used in cases of labor disputes prior to arbitration. However, if dispute could not be resolved with conciliation, then there shall be an intervention of arbitration clause as stated in Hines v. Anchor Motor Freight, Inc. In case of negotiation it is essential on the part of the parties to dispute to negotiate the matter successfully in order to reach the final agreement. However, for successful negotiation it is important that the parties should have proper knowledge regarding the matter as trust and understanding is associated with such settlement.
It is worth noting the advantages and disadvantages of Alternative Dispute Resolution. In Vinos v Marks and Spencer PLC (2000) it was held that the court proceedings are time consuming as well as the costs involved with such proceedings are difficult to understand. It was held in this case that court proceeding are associated with formalities with the involvement of precise legal documents. Therefore the process is complex and adversarial in nature which cannot be easily understood by an ordinary individual. In case of arbitration, the parties to dispute are at the authority to select an arbitrator of their choice however the only drawback is that in some cases the decision of such arbitrator can be bias. Mediation requires a short span of time however; in case of fault on the part of the mediator seeking another alternative resolution shall be costly. Conciliation is confidential however; the decision maker cannot come to a conclusion if both the disputing parties do not agree with the terms of the dispute.
The advantages of alternative dispute resolution are compared to court proceedings are advantageous however; the costs involved in court proceedings are complex in nature. Alternative Dispute Resolution is much cheaper compared to court proceedings which are very expensive and time consuming. Negotiation is one of the cheapest methods of alternative dispute resolution in which the parties to dispute can resolve the issue within a short span of time. The main advantage of alternative dispute resolution is that the proceedings are confidential while the proceedings of court are attended in public.
In spite of various advantages the alternative dispute resolution is also associated with some disadvantages as well. Firstly, in some methods of alternative dispute resolution, for instance, in arbitration the decision is final and binding upon the parties. This is a major drawback as the parties cannot appeal further if they are not satisfied with such decision. Secondly, the proceedings of alternative dispute resolution may be faster and cheaper however the decision taken by the expert is not always certain. In case of litigation the proceedings may be expensive however it involves certainty. Thirdly, the methods of alternative dispute resolution are not applicable in cases where one of the parties to dispute wants closure of the matter immediately. Alternative Dispute Resolution is applicable only when both the parties to dispute agree to the terms and conditions of the matter involved.
In the conclusion it can be stated that both litigation and alternative dispute resolution varies in relation to their procedures and applications. However, in modern era with the employment of both the methods of litigation and ADR the areas of dispute can be dealt efficiently.
References:
Dunnett V Railtrack Plc: Ca 22 Feb 2002.
Gough, Mark D. "The high costs of an inexpensive forum: An empirical analysis of employment discrimination claims heard in arbitration and civil litigation." Berkeley Journal of Employment and Labor Law (2014): 91-112.
Hines v. Anchor Motor Freight, Inc., 424 U.S. 554 (1976).
Kinstreet Ltd v Balmargo Corp. Ltd [1999] ADR.L.R. 07/23.
Lee, Chia Kuang, Tak Wing Yiu, and Sai On Cheung. "Selection and use of alternative dispute resolution (ADR) in construction projects—Past and future research." International Journal of Project Management 34.3 (2016): 494-507.
Premium Nafta Products v Fili Shipping [2007] UKHL 40.
Resnik, Judith. "Diffusing Disputes: The Public in the Private of Arbitration, the Private in Courts, and the Erasure of Rights." Yale LJ 124 (2014): 2804.
Trakman, Leon E. "Confidentiality in international commercial arbitration." Arbitration International 18.1 (2014): 1-18.
Vinos V Marks And Spencer Plc: Ca 2001.
Wang, Margaret. "Are alternative dispute resolution methods superior to litigation in resolving disputes in international commerce?." Arbitration International 16.2 (2014): 189-212.
