Alternative Dispute Resolution

Civil law -- rights and remedies of citizen

Civil justice ensures that civil rights and remedies are respected and enforced

• comprehensive review of civil justice system in 1990s
• 'Access to Justice' (final report released 1996)
• Civil Procedure Rules came into force 1999
• unhappy with way disputes resolved at pre-trial stage
• criticised 'uncontrolled nature of the litigation process'
• system suffers from 3 fundamental problems -- cost; delays; complexity
• 'the civil justice system was failing most conspicuously to meet the needs of litigants...The littigation system had become a battleground where no rules apply.' 

Prior to the reform lawyers left to own devices as judges took hands-off approach and awaited trial -- pre-trial proces tended to be antagonistic, lengthy and tense -- 'a bruising process' (Roberts; 2000)

Reforms

• report blamed adversarial settlement culture for pbolems in civil justice system
• more consensual culture of settlement was needed premised on early settlement and avoidance of court proceedings whenever possible
• to achieve this cultural change, control would be taken away from lawyers and placed into hands of judges
• judges would become 'active case managers'

Implications of the reforms

• fundamentally questioned the nature and identity of the courts
• reconceptualised the role of courts from authoritative third-part decision-makers to becoming sponsors of negotiated settlement
• shift was difficult for many to grasp

Types of ADR -- mediation, settlement conferences, neutral evalutation, arbitration

Characteristics of mediation

• use of mediator
• impartiality of mediator
• no authority to make determination
• authoirty derived from partis -- only have power given by parties
• consensual relation - outcome agreed by all parties
• resolution objectives
• faciliation of negotiation
• providing secure negotiating environment
• empowerment of parties
• confidentiality
• no substitute for independent advice
• containment of escalation
• voluntary process
• Aspects -- prelim joint meeting; private meetings; concluding joint session

• cheaper than litigation
• quicker results
• avoid publicity of court proceedings 
• enable parties to work out a mutually acceptable solution
• empowerment of individual
• principles of co-operative problem solving
• public savings -- reduced delayed access to justice; lower backlogs and caseload; speedier conclusion of cases that must go to trial
• feminist alternative from patriarchal adversarial system -- creating more equality?
• less antagonistic
• ensure relationship could be maintained
• more creative settlement
• likely that compliance would ensue

• mandatory mediation -- cost sanction on litigants who unreasonably refuse to engage in mediation -- destructive
• lower demand
• lawyers remain sceptical
• no evidence to suggest difference in duration of cases
• difficult to estimate how much (if any) cost is saved
• coerced consent
• unequal bargaining power
• who has authority to consent in cases of groups/organisations?
• problems relating to women having a more relational sense of self than men and how this might affect negotiation
• if one party appreciates cooperation more than the other the parties might compromise unequally
• privatisation of justice
• future uncertain -- what shape will it take?
• Bentham -- 'compromise' as denial of 'justice'

Negative effects for parties involved

• may not always generate desirable outcomes for both parties
• occurs frequently in cases where there are imbalances of power between the two parties
• in absence of formal safeguards, weaker party may be coerced into accepting a compromise that is not to their benefit

Negative effects for society as a whole

• dangerous implications for democratic society more generally
• public adjudication is occasion for reasserting and developing core values
• if justice is privatised, society loses a core mechanism for ensuring that the rule of law is upheld
• stability of polity is compromised
• implications for development of common law

Coalition government has consistently pushed for more mediation

Distracts from the fact that the Coalition government has been systematically withdrawing funding from the court system 

Legal Aid and Sentency Act 2012 -- cut legal aid in vast areas of civil law

Civil Procedure Rules 1999

• active case management - dual process -- courts facilitate settlement and where not possible, to clear the route towards judgment
• 3 steps to facilitating judgment
• 1 - encouraging cooperation between parties in conduct of proceedings
• 2 - encourage ADR where appropriate
• 3 - helping parties to settle -- judge as active settler/mediator

Family Law Act 1996

• procedure controlled by parties rather than professional representatives or the court
• rejects litigation as primary means for decision-making around divorce
• mediation with services to support
• only very rarely involve entry to procedural arena of litigation
• s29 -- parties seeking legal aid for 'proceedings' must be assessed for suitability for mediation first