The Concepts Of Alternative Dispute Resolution Law Essay

The Concepts Of Alternative dissension Resolution Law EssayThe coursework question is relates with the concept of Alternative scrap courage. This coursework question is also linked with family relationship among ADR, kiss of life 1998 and EU leading regarding the way out of Mediation. The comment of Lord Rodger of Earlsferry is a signifi bottom of the inningt bureau of this coursework. In my coursework I will chronologic exclusivelyy discuss the History of ADR, its relationship with Civil Procedure Rules( on that pointafter mouth-to-mouth resuscitation), Its implementation in the Courts, Judges attitude on various cuttings and its wedge on European Court of Human Rights (thereafter ECHR) peculiarly in the fine art-6. Present situation in legal area and feasible probabilities in the future.Alternative battle resolution (thereafter ADR) is a way of seek to melt obliging affray. The concept of ADR arose mainly from a negative author such(prenominal) as, dissatisfacti on with the delays, tolls and inadequacies of litigation knead. It is the service of resolving disputes in perpetrate of litigation. The most common classification is to describe ADR as a unified dispute resolution cognitive serve with third troupe intervention which does non impose a leg entirelyy binding outcome on the parties.1It is angiotensin converting enzyme kind of advanced resolution, which is confidential and without prejudice. So the materials of the affect need non commonly be disclosed to a judicatory2.The simplest runs of ADR to understand are in edgeediation and conciliation. Some important providers of ADR include arbitration within the ambit of ADR since it is an preference to litigation in the motor hotels. Others would exclude arbitration on the basis that it is a legal regale, the outcome of which is binding. Parties to a dispute have evermore been equal to(p) to refer their dispute to arbitration which is a far older and to a peachyer ext ent formal means of dispute resolution than either interintermediation or conciliation.3In the 1970s the concept of juvenile development of ADR established in the United States beca map of high bell and long delays of litigating business disputes. ADR was playing an increasingly useful part in the commercial area to dissolve slightly disadvantages of highly expensive and strict adversarial system.In late 1990s the greetly justice system in England and Wales go through a big revolution. curiously Lord Woolf creates a remarkable impact regarding the numerate of ADR in his enormous report, Access to Justice. His view implemented in a surprisingly short time by the civil effect rules 1998 and the Access to justice Act 1999. These changes introduce a new dimension in the socialisation of litigation.thither are different types of ADR used in commercial disputes such as, Arbitration, Conciliation, Mediation, Ombudsmen etc. Arbitration, Conciliation and Mediation is the most famous procedure from all of them.Arbitration has the force of law and commonly an arbitrators decision called an award which can be enforced in the courts just as a appraisal of the court.4Section 1 of Arbitration Act 1996 introduced some specific rules and regulations regarding this emergence such as impartial tribunal, un-necessary delay and expenses.5Conciliation is kind of reduplicate with the concept of mediation. In that process conciliators offer in return not to try the fount only when this is rarely taken up. The process is mandatary in Switzerland.Mediation is the most famous and accepted method of ADR in England and Wales. It is quick, non-binding, without prejudice and confidential. In that process a intermediator acts as a go-between to dissolve the dispute and wants to make a firmness of purpose. The mediator mustinessinessiness be a neutral companionship. Mediation is to the highest degree much more than just assisted without prejudice negotiations bu t confidentiality and privilege are the truly cornerst hotshots of the success of mediation. Parties to mediation need to be sure that what they say in mediation and documents produced for the mediation will not become tender-heartedity noesis or become evidence in proceedings, whether litigation, arbitration or adjudication.6 at that place are varieties of modestness to choosing mediation over other ways of dispute resolution such asA less expensive path to prolong for dissolves the dispute.It offers a confidential process.It offers multiple and flexible possibilities for resolving a disputeThis process consists of a mutual endeavour.It takes place with the aid of a mediator who is a neutral third party.If we analyse the whole process of ADR then we will find that the most significant criteria of this process is the term Confidentiality. This term significantly make up the parties interest regarding the way out of ADR. Confidentiality is integral to the relationship betwee n the mediator and the parties are one of the four fundamental and oecumenic characteristics of mediation. It is the cornerstone of the relationship of trust and that must exist between the mediator and the parties. It is crucial to the voluntariness of participation of the parties and to the impartiality of the mediator. The parties must not feel that they index be disadvantaged by whatever disclosure that whitethorn be used in legal proceedings or in every other way7In the coursework Question the statement is relates with the field of study of mediation. instantly i will discuss about mediation and its relationship with mouth-to-mouth resuscitation 1998, sheaths and evaluatement of the courts and the impact of EU Directive.There was no defined predominate objective for civil justice when ADR instals were devised by the commercial court judges. cardiopulmonary resuscitation pt 1 has now identified ADR as one of the courts tools of industrious case management available t o achieve that objective.8Lord Woolf provides significant impact on ADR e finically on mediation on his reforms proposal. His aim was stipulation prominent status in the courts new case management powers. Especially in , cardiac resuscitation 1.4There are some important rules coordinated in the CPR1998 regarding the military issue of Mediation or other form of dispute resolution such as, r-1.1(2), 1.3, 1.4, 3.1(2)(m), 26.4(1), 44 etcRules-1.1(2) provides that mater must be relations with justly manner if it is practicable. There are some element has to be consider in this part such as, parties must be in equal footing, saving expenses, matters must be dealings proportionately, matter must be deal with expeditiously and fairly.9Rules-1.3 provides that parties are required to help the court to further the overriding objective. It also provides general affair of the parties.10Rules-1.4 provides about courts certificate of indebtedness towards the parties where stated that court must further the overriding objective by actively managing cases which includes encouraging the parties to co-operate each other, identify the reduces in early stage, helping the parties to settle the whole or part of case.11Rules 3.1(2)(m) stated about general powers of management of the courts where court can take each step to keep and furthering the overriding objective.12Rules-26.4(1) stated that parties can request for stayed. Court can conceding their request if they think appropriate.13Rules-44 provides general rules about the be of the procedure such as be are payable by one party to another, amount of those exist, when to be paid etc. In r-44.3(2)(a)where stated that attempted party will be gradeed to pay the cost of the prospering party but court can make different order.14The significant impact of CPR 1998 regarding the matter of dispute resolution could be prepare in some cases. In the case of Dyson Field exors of Lawrence Twohey deed vs Leeds urban center Council,15Ward LJ stated that matter relates with overriding objective of the CPR and courts duty to manage cases according to rule 1.4 of CPR. He also stated court should make headway the parties. In the case of R vs Plymouth City Council16, where Lord Woolf has disposed(p) more underscore on CPR and he also suggested that mediation should get the priority over the litigation. So we can say that modern CPR rules create a significant impact on the matter of dispute resolution.Judges always give emphasize on the matter of ADR in order to save the cost and time. Courts also began to give warnings and issue advice at the conclusion of cases that parties should seriously consider ADR or run the fortune of costs penalty. Now i will discuss some relevant cases and judgement which will provide the legal approaches regarding the matter of mediationIn the case of Dyson Field vs Leeds city Council17, Lord Woolf was a member of the CA. The matter was related with mediation where Ward LJ s aid that court should encourage the parties to use ADR to dissolve their matter and it also should be sooner rather than later. There is another important case which is Cowl vs Plymouth City Council18, Lord Woolf has given(p) a lead judgement regarding commercial court ADR order. He delivered herculean comment on both parties failure to use an available ADR process and the delay and cost of violently contested of judicial review proceedings. He also stated that if the parties dont go for the mediation then it would be wastage of public money.There are case Hurst vs Leeming19, where Lightman J. Stated that alternative dispute resolution is at the heart of todays civil justice system although mediation is not in law infallible but its a significant and captivating aspect of civil justice system. There is another landmark case Dunnett vs Railtrack20, case regarding the matter of penalty impose for not taking mediation. Mrs Dennett befuddled her horse because contractors cant padlo ck the gate. She sued for compensation but lost in the county court because her lawyer wrongly framed the case. She appealed in person and she gets the liberty to appeal. Schiemann LJ suggested for mediation but the Realtrack rejected this offer despite the fact that CA offered a free mediation scheme. CA expressed regret about this. They considered whether Realtrack had made Pt 36 offers. Mrs Dennett was unsuccessful. Then Railtrack asked for their costs but CA made a separate judgement on this cost issue. CA held that Railtrack couldnt recover their cost because they had refused to participate in ADR.So judgement of Railtrack case gets lot of controversy because the party faced adverse cost consequences, flush they win the trial. Despite this case mediation is not compulsory or nor it should be because part of the mediation process is that the parties should want to come voluntarily in the process. If mediation becomes mandatory then there is a great chance to lose it signific ant aspect.In the recent case cost sanction issue raised once again in Halsey v Milton Steel v Joy (joint Appeal)21,in this case the actual fact was if whatever party ignoring to mediate the dispute which was requested by an inter-party then cost sanctions should be imposed or not. Dyson L.J held the court cannot require a party to proceed to mediation against his will as this would contravene art.6 of the European multitude on Human Rights. The court did however confirm that costs consequences could follow from un apt failures to mediate.22 tho it was not clear whether the court take this pointedness because this point was submitted in the last minute.On 21 May 2008, the Directive 2008/52/EC on certain aspects of mediation in civil and commercial matters was adopted. fine article 1 state the aim of the directing is to facilitate access to alternative dispute resolution and to promote the amicable firmness of purpose of disputes by encouraging the use of mediation and by ensur ing a equilibrize relationship between mediation and judicial proceedings.Article 3 of the EU leading provide the definition of mediation as a structured process whereby two or more parties to a dispute attempt by themselves, on a voluntary basis, to reach an agreement on the settlement on their dispute with the assistance of a mediator. Article 5 of the EU directive provide discretionary power to courts to invite the parties to use mediation to settle their dispute. Article 6 of the EU directive states that a indite mediation settlement may be declare enforceable if all the parties agree to the process. Article 7 of the EU directive provide reasonable support regarding the matter of warranting the Confidentiality of the mediation process.The Directives basically suggested the state parties to make the laws to encourage the parties to do mediation by the court, not by compulsion. The directive states, the directive applies to civil and commercial matters, and is intended to prom ote mediation, and ensure a give way relationship between mediation and judicial proceedings.23EU Parliament and council agree the Directive to encourage the use of mediation because its a quicker procedure to a civil litigation and cost effective for cross-border commercial disputes. agree to the coursework question now this essay will justify the statement which is provided by Lord Rodger of Earlsferry regarding the matter of mediation.Obliging parties to engage in some form of mediation whether as a pre-condition to going to court or as a result of compulsion by the court, seems to berather contrary to the spirit of the guarantee in Article 6 of the European pattern for the protection human Rights24In that above statement he has given more emphasize on chip in situation of mediation and its application on the Art 6 of ECHR. According to that statement present mediation procedure is rather contrary with the concept of Right to a fair trial. ECHR adopted into incline Law from 2 October 2000 as a result of the HRA 1998. Art 6 of ECHR is quite interlinking with ADR. Now the main issue is whether the present procedure of mediation is violating the Art 6 of ECHR or not.Tthe statement of Lord Rodger of Earlsferry is not quite relevant with the present situation of mediation. There are present some reason behind this. Mediation is not a mandatory procedure in our legal system but it has got a special significant aspect after the Woolf reforms 1998.Mediation agreement often specifically state that, The referral of the dispute to mediation does not affect both rights that may exist under Art 6 of ECHR. If the dispute is not colonized by the mediation, the parties rights to a fair trial remain unaffected. It is true that EU court encourages parties to settle disputes extra-judicially because it will save cost, time, delay etc. In the matter of mediation court can intervene in the process to protect the right to trial such as if there is any undue military press upon a party into a non-judicial process. In the case of Deweer v Belgium25, the matter related with the debate about whether mandating mediation is allowable or not. Deweer could avoid such proceedings by paying a friendly settlement. He chooses settlement but reserved his right to argufy the proceedings. Then he initiated a challenge regarding the matter of Art 6 of ECHR. Deweer held to have waived his right to go to court only by reason of barricade which vitiated his consent to paying the friendly settlement.26In process of mediation, no one is restrained to settle. Participation is entirely voluntary any hidden matter of the parties or procedure cant later be discussed before a trial or elsewhere because of confidentiality. No one ever enters the process on the basis that they must settle or if they dont that then cant seek remedy from public court. Mediation is not resembling the status as arbitration because it totally depends on the parties will. In McVicar vs UK27, EU c ourt has held that Art 6 is not run afould by restraint court access to vexatious litigants, bankrupts, mental patients.In CPR1998 there is lots of provision which should be represented by the parties before going to any public trial. Before proceeding parties must fulfil some pre-action protocols and coiffe direction then party must pay court fees at several stages. Parties also need to fulfil other procedural prerequisite such as allocation questionnaires, statement of case, disclosure and evidence. In R vs Lord Chancellor exparte witham28. The matter regarded intermit of Art 6 because of sezession of court fees exemption scheme for those on income support. So if anyone doesnt follow those procedures regarding CPR they will be liable and they may get punishment or imprisonment. So it seems that these CPR requirement doing unwrapes Art 6 because parties have to maintain some rules and provision against their wish and will. Now if these are not breach of Art 6 then why orderi ng of mediation would be breach of Art 6. In Golder v UK29, it was held that ADR approved in CPR Pt1, where stated a mediation is not breach of such requirements. In Deweer30case also confirmed that this dispute process is not breach of Art 6 rights.Its clear from the Halsey31case that mediation must always be voluntary under slope Law. Court or judge to order mediation would be a possible breach of Art 6(1) of European convention. If we analyse all of the cases then two significant points would be come out. They are,Forced by a judge into ADRStrongly boost towards ADRFirst approach is likely to violate Art 6, as Halsey confirms. But the second approach is not clear, is immune from challenge under the convention as jack J said summarising in Halsey, the fear of costs sanctions may be used to remove unmerited settlements32. To distinct between Voluntary and Coerced ADR in this background is hard to draw with certainty. Jack J suggested in Carleton v Strutt Parker33 A litigant who is landed with an unfavourable costs order for failing to agree to ADR goes to mediation at the courts suggestion but is afterwards stigmatised as failing to participate in good faith, could sanely claim that this outcome operate as obstruct or fetter on the right of access to the court, contrary to Art 6, and that their apparent consent to ADR was no waiver of their fundamental rights now directly enforceable in English Law under the HRA 199834.The evidence supporting the use of mandatory mediation is mixed. Central London County Court saw a enormous increase in mediations following Dunnett case, but the settlement rate also eubstance declined during that period35.If judges apply too much pressure, the overriding objectives of the CPR may not be achieved its goal to lower the settlement rates with wasted cost and time but some pressure is needed to ensure that parties should consider mediation as an option but this pressure is less needed than it once was because the legal profes sion involved in construction litigation now knows the benefits of mediation. Although many countries those have strong cognizant about human rights and constitutional rights introduce conciliation or settlement conference chaired by judges in their legal system. This can be called Courts mandate mediation. So by this process they want to put mediation within court process which would be more acceptable regarding the matter of conventional rights.In the Halsey case CA held that court cannot proceed a mediation process against the parties will which would be contrary to the Art 6 of ECHR but in the case of Shirayama Shokusan Co. Ltd v Danovo Ltd36, court issued a mediation order even though one party was unwilling. CPR r. 1.4(2)(e) emphatic to encourage the parties to use alternative dispute resolution. Sir Anthony Clarke37states that Court has the power to order autocratic mediation and he also said that Halsey decision was a obiter so there was a chance for the judges to make co mpulsory mediation order. He also suggested that courts have a jurisdiction to order mediation process under the CPR. Sir Gavin Lightman also expressed his view on behalf of the mediation process.Sir Anthony Colman38states that there is a close relationship between the court and mediation. He also states that mediation process is not mandatory. Lord Philips39states that in adversarial litigation there are lots of complications such as solicitor fees, court fees, defendant is faced with a huge bill for the claimants cost and insurance, delay and complex procedure, disproportionate cost etc. According to him ADR is quite reasonable and flexible procedure because it does not have any superfluous difficulties. He also states that court order to the parties for mediation is not infringe Art 6 of ECHR.Lord Philips, Sir Anthony Colman and Sir Gavin Lightman are the supporter of mediation process because litigation process has lots of disadvantages and mediation process has flexible, time saving, cost saving and confidential process which is reasonable for the parties as well as for the society. Although EU directives contain some provision where state that court must encourage the parties to use mediation process to settle their disputes. Some cases like Cowl, Dunnett and Halsey cases where maximum of the judges held that parties should use mediation voluntarily rather than mandatory and court always encourage the parties to take this procedure. Although in some cases there was some controversy but different judges has given their views regarding this matter and maximum of them supported the procedure of existing mediation procedure. So at last it can be said that the present procedure of mediation is not obliging the parties but encourages them to further overriding objective of the court.