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Purpose Of Alternative Dispute Resolution (ADR)

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Question:

Evaluate the purpose of Alternative Dispute Resolution (ADR) and, with particular reference to the services provided by ACAS, assess to what extent it is a successful means of resolving disputes outside the formal judicial process?
 
 

Answer:

Alternative dispute resolution (ADR) is the term that is used for describing the methods through which a dispute can be resolved without recourse to litigation. These methods include mediation, arbitration, conciliation, expert evaluation and ombudsmen. In this way, the ADR methods allow the parties to resolve their disputes without going to the court and involving in litigation. Due to this reason, these methods are known as alternative dispute resolution methods (Bradley and Ewing, 2008). The use of ADR methods has increased significantly among the parties because these methods provide a cost-effective and faster way to resolve a dispute. Another thing that needs to be mentioned in this regard is that these methods are not adversarial in nature. Similarly the resolution of the dispute that has been achieved by using ADR methods is more satisfying for the parties because both the parties are involved in arriving at the solution. As compared to litigation, the ADR methods provide much more flexibility to the parties. In most of the cases, the ADL methods are used for resolving disputes that are for civil nature like a family dispute or a dispute among the neighbours. As a result of the significant advantages provided by these methods, ADR methods are also increasingly being used for resolving commercial disputes (Carey, 2007). The same can also be said in case of employment disputes as ADR methods are being preferred to resolve disputes between employees and employers.

At the same time, considerable pressure has also been placed by the policymakers to increase the use of ADR methods for resolving disputes of different natures. However at this point it needs to be noted that although the use of India and methods as increased significantly but there are certain methods like mediation that are not being used frequently in case of employment disputes especially in the organizations of the private sector (Cornes, 2008). In this regard, when the number of commercial disputes that are resolved with the help of ADR methods is considered, it becomes apparent that some of these methods are not being used much, particularly by small and medium enterprises. As a result the focus of the efforts aimed at increasing the use of ADR methods should be on these enterprises. It has also been seen that in case of small and medium enterprises, there is a tendency to terminate the employment relationship completely and as a result, efforts are not made to repair these relationships. On the other hand, in case of larger organizations, there are internal ADR processes present that can be used for resolving disputes with the employees without terminating the employment relationship completely.

 

In case of employment disputes, a significant role has been played by the Advisory, Conciliation and Arbitration Service (Acas). This government body is trying to improve working life and employment relationships by promoting strong industrial relations practices. In order to achieve this purpose, several different methods are used by Acas like arbitration and mediation (Kressel, 2006). However, Acas has received much attention for the collective conciliation functions that have been performed by it. In such a case, the disputes that arise between a group of employees and their employer resolved. Generally in such a case, the employees for the workers are represented by a trade union.

Although Acas has been established by the government in 1974 however a conciliation and arbitration function had been set up by the government in 1896 and the Board of trade delivered it (Conway, 2009). However, Acas achieved popularity as a result of the role played by it in resolving some of the high-profile disputes that were of a collective nature. However, it needs to be noted in this regard that a much wider role is played by Acas and it deals with various aspects related with resolving disputes and their prevention. At the same time, in order to describe all third-party interventions, generally the term mediation is used however a distinction is made by Acas in various methods of media like mediation, arbitration and conciliation.

For achieving its objectives, Acas works for improving the employment relationships. It helps the employers in acquiring the skills required to develop and apply the procedures that can help in sustaining employment relationships even if a high conflict situation has arisen. In the current business scenario, a large number of small and medium firms are emerging in the country. Therefore, it may not be economically viable to involve third parties in resolving all the disputes that may arise in case of such firms (Allen, 2008). Therefore, the significance of introducing ADR processes increases considerably, particularly when the conflict is at its early stage. In this way, if the ADR processes are introduced at an early stage, the conflict can be controlled from taking the form of a deep-rooted dispute. It is very important to prevent the dispute from escalating because in such a case, the distance between the parties may increase so much that it may be very difficult for the parties to come together later on. Therefore, ground should be prepared for the use of direct ADR services by the medium and large firms also as there are a number of large organizations where mediators are present and they step in at the early stage of a conflict within the organization.

 

Due to the reason that Acas is an independent body, it does not take the side of any particular party to the dispute but only helps the parties in arriving at a suitable solution. While the earlier large-scale industrial disputes that were present during the 1970s and 80s are not faced these days, Acas focuses on helping the businesses in preventing the disputes at workplace and also preventing these disputes from escalating. In this regard, a telephone helpline has also been provided by the Acas. At the same time, Acas also provides training sessions to the employers so that they can effectively handle disputes and prevent them from escalating. Acas also focuses on the individual complaints that are made before the employment tribunals and provides consultation services in such cases.

The main objective of Acas in future is to ensure that good employment relationships are maintained that the workplace and at the same time, there are certain short-term objectives also like reducing the number of cases filed in the employment tribunals. For achieving this objective, Acas lays much emphasis on promoting the use of ADR methods are the early stage of a conflict that has arisen at the workplace. By adopting such an approach, the dispute can be prevented from taking the shape of a large-scale conflict. The parties are also required to be made aware of the wide range of ADR processes that can be used for resolving the disputes. In this way, Acas plays a significant role in helping the parties in resolving their disputes without taking recourse to litigation.

II. Due to the reason that the European law is applicable in the United Kingdom, it has a considerable impact on the legal system of the UK. In this regard, it has been mentioned in section 2, European Communities Act, 1972 that all the acts that are a result of the treaties need to be enforced by the UK courts. In the same way, it has been required by section 2(4) of this legislation that the UK courts are required to interpret and give effect to the national law by keeping in mind the principle that the EU law enjoys supremacy over the domestic law of the UK. The result of these provisions is that in case of a conflict between the law of the UK and the EU law, the courts in UK have to prefer the EU law.

 

It also needs to be noted in this regard that the European Union law is treated as a part of national law of each member state. This is true in case of the UK also. At the same time, while dealing with this question, it has also been mentioned by the European Court of Justice that in case of a conflict between the EU law and the national law of a Member State, preference needs to be given to the European Union law. It has also been provided by the European Communities Act in section 3 that the interpretation of legislation and treaties of the European Community is a question of law and therefore the European Court of Justice has the power to interpret this question. As a result of the question needs to be decided by the courts in the UK, it has to be decided by the national courts of UK, keeping in mind the decisions that have been given by the ECJ.

As mentioned above, the EU law is considered as a part of the domestic law of all the Member States of the European Union. This is true in case of the United Kingdom also. In the same way, in the decision given in Costa v Ente Nazionale per l'Energia Elettrica (ENEL), 1964, the European Court of Justice has clearly stated that in case of a conflict between the Community law and the national law of a Member State, the community law shall prevail. At the same time, keeping in view the provisions of section 3, European Communities Act, the national force in the United Kingdom have to interpret the matters dealing with community law according to the relevant decisions of the European Court of Justice. Therefore the opinion of the ECJ HAS to be considered by the national courts in UK while deciding a matter.

Similarly, it also provides for a duty of the Parliament of UK and a power given to the courts in United Kingdom that they are required to help UK in fulfilling its Treaty obligations. As a result, the Parliament of the UK intends that the national courts should apply Community law in case there is a conflict between an act of the Parliament and the Community law. Therefore, there is no doubt that a duty has been imposed on the national courts of the United Kingdom that they are required to do for the Community law if there is a conflict between such law and the domestic law. This duty has been imposed on the national courts by the European Communities Act. At the same time, it has also been provided by the European Community Treaty in article 220 that the national courts of member states are required to fulfill this obligation while applying or interpreting the Treaty (Turpin and Tomkins, 2000). Similarly the ECJ is also stated as the judicial arm of the EU. Therefore, in all the matters related with Community law, the judgments of ECJ have to be preferred over the judgments of the UK courts regarding such matters. At the same time, the European Community Treaty also provides in article 234 a preliminary ruling can also be applied by the national courts before the ECJ regarding a particular point of Community law before the case is decided by the domestic courts.

 

As a result, in some cases, the judge of a court in UK may disapply the provisions of the domestic law of UK for the purpose of preferring community law over the domestic law of UK and also in accordance with the doctrine of direct applicability. It has been clearly mentioned by the European Communities Act that all the laws enacted by the UK Parliament need to be applied and construed according to the provisions of Community law applicable in this regard. As a result of these provisions, it is important that the UK national law needs to be integrated with the EU law. Similarly, the EU law should be given effect in view of the provisions according to which, the EU law enjoys supremacy over the domestic law of the Member States.

As a result of this position of law, now the EU law has to be given preference over all the sources of domestic law. For example, in R v Secretary of State for Transport, ex parte Factortame (No. 2) [1991] AC 603, the case went to the ECJ from the House of Lords. It has been clearly stated by the European Court of Justice in this case that the domestic courts of United Kingdom have to apply the EU law that is directly effective, in case there is a conflict between the domestic law of UK and EU law. In this case, some parts of the Merchant Shipping Act have been struck down by the House of Lords as these provisions were considered to be in conflict with the provisions of the Treaty of Rome. This case was the first case in which the British judges have overturned a statute. At the same time, this case is also significant as a result of the fact that in this case, the European Court of Justice clearly stated that if the provisions of the national law are contrary to the provisions of the European Union law, the national courts should ignore the provisions of the domestic law.

The position was further clarified by the European Court of Justice and the supremacy of EU law over the domestic laws of member states was further reiterated by the decision of the European Court of Justice in Costa v ENEL (1964). The result of these decisions is that in case there is a conflict between the community law and the national law, a defense of reliance on EU law is present as discussed in Pubblico Ministero v Ratti Case (1974). 

As a result of the legal provisions and the decisions of the European Court of Justice mentioned above, it can be stated that in case there is a conflict between the domestic law of a member State and community law, the national courts are required to light the EU law. As a result, in the present case it can be said that in case of a conflict between the UK law and the Community law, the UK courts are required to give preference to the provisions of the Community law over the national law of the United Kingdom.

 

References

Bradley, A & Ewing, K 2008, Constitutional and Administrative Law, Longman

Carey (2007) Is a Mediation Privilege on the Horizon? 14(5) CLP 102

Allen, 2008, Peering behind the veil of mediation confidentiality, a new judicial move in Malmesbury v Strutt and Parker

Conway (2009) Recent Developments in Irish Commercial Mediation: Part I 27ILT 43

Cornes (2008) Mediation Privilege and the EU Directive: An Opportunity? 74, Arbitration 4

Kressel, K. (2006). ‘Mediation revisited’, in M. Deutsch and P. Coleman, The Handbook of Constructive Conflict Resolution: Theory and Practice, San Francisco: Jossey Bass.

Turpin, Colin & Tomkins, Adam 2000, British Government and the Constitution (Cambridge University Press Case Law

R v Secretary of State for the Environment ex parte Factortame (No. 2) [1991] 1 AC 603

Costa v Ente Nazionale per l'Energia Elettrica (ENEL) [1964] C.M.L.R. 425

Pubblico Ministero v Ratti (Case 148/78) [1979] ECR 1629

Legislation

Section 2(1) European Communities Act, 1972

Section 2(4) European Communities Act, 1972

Article 220, European Community Treaty

Article 234, European Community Treaty

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