Civil Courts and ADR?

• Injustice/unequal bargaining power - big companies could afford legal representation compared to single claimants. 
• Complexity - If you were claiming in the high court, you had to complete a writ, which is complicated so people were put off by this, therefore it was inaccessible. 
• Cost - Legal aid and funding had decreased so unless you were wealthy you couldn't claim. There were also no rules on legal representation of either side so can be unequal, especially if loser has to pay winning costs against a big company. 
• Time Delays/Inefficiency - Delays of 3-4 years, and the system was clogged up with various claims. New cases were brought to the bottom so there was no priritising. 
• Adversarial process -costly for the claimant and benefitted lawyers as they still had to pay fpr any delays. Also there was no way of estimating the cost. 
• Complicated Language - The words writ, summons, plaintiff are hard for ordinary people to understand. This stopped people from accessing their right to justice and became a barrier. (80% gave up) 

• User friendly terminology - Got rid of writ and plaintiff. Replaced with N1 claim form and claimant. 
• Simplified procedures - Regardless of Court the case is being heard in, there is one form that you fill out (N1 claim form)
• Pre-action Protocols - By doing this they were hoping people would settle disputes out of court (e.g. the claimant must write a letter to the defendant which may result in a remedy, now 80% reach this before the first hearing). This would in turn unclogg the system. 
• Active Case Management - judges actively manage the case meaning the cases are heard more quickly and are therefore cheeper. It would also unclog the system. 
• Three track system - Small claims reforms meant claims up to £5000. (LASPO changed to £10,000.) Fast track was introduced (£5,000-£25,000 until LASPO) and so was multi-track (£25,000 or over.)
• Greater Promotion of ADR - 4 types of ADR (negotiation, mediation, concilliation and arbitration )

• More cooperation between parties - More ADR promotion. Pre action protocols introduced (so may be solved without using the courts)
• Less adversarial - Changed to inquisitorial so the active management means costs are reduced. 
• Public confidence - Reassurance of cost/budget. Costs will be balanced due to Active Case Management. 
• Pre-action protocols - More cases can be settled out of court (now 80% settled before first hearing), so money is reduced and it is more accessible. 
• Reduced time/delays - As the system is now lead by judges, solicitors/lawyers cannot delay case to earn more money therefore is faireer for the claimant and they can be advised prior to the case. 
• Increased ADR - Less cases go to court so quicker the cases are heard. 

• Heavily front loaded system - Pre-action protocols take a lot of preperation which may put people off, making it less accessible. 
• Cost/expense - Still expensive, However LASPO means if they qualify for Qualified One Way Cost Shifting the costs for the claimant are reduced. 
• Lack of legal funding - Not accessible to those who cannot afford it because it always costs money as there is no legal funding. 
• Delays in small claims - Initially introducing new tracks it would have reduced but due to LASPO small claims is now clogged with claims from fast track that have moved. 
• Complexity - Still complex and pre-action protocols take loyts of time/thought which may put people off. 
• Trict time limits - If case doesn't finish it is thrown out of court, so claimant loses out. 
• Inequality/fairness - Legal representation in small claims is discouraged but they ARE still allowed, so it may become unfair. 
• Legal profession fears - Loss of jobs and less pay for lawyers involved due to strict time limits and less people going to court. 
• ADR - Although it is reccomended not many people use it so the system is still clogged. 

220 Courts in England and Wales. 

• Contract, tort and recovery of land up to any value. 
• Partnerships, trust and inheritance up to £30,000. 
• Divorce and bankrupcy. 
• Personal injury less than £50,000.
• Small claims, fast track and some multi-track cases. 

Divided into 3 divisions: 

Queens Bench Division

- Hears contract and tort cases of over £50,000 and some complex multi-track cases. 
-  Also contains the commercial court, Admiralty Court and the Technology and Construction Court. 
- Supervisory role and hears judicial review.

Family Divison

- Has jurisdiction to hear wardship cases, cases under Childrens ACt 1989 and other family matters.

Chancery Division

- Deals with technical issues and has jurisdiction to hear matters of insolvency, mortgages, trusts, property disputes, copyright and patents, intellectual property and probate issues.  

• Complete an N1 claim form naming the defendent and stating the particulars of the claim including damages being sought. 
• Court will send N1 claim form to D and they are given the opportunity to admit the claim and pay amount claimed or defend the claim. 
• If the D chooses to defend the claim the court will send an allocation questionnaire to both parties. 
• When the defendant returns the form a fee must be payed. The fee depends on the amount being claimed. 
• Some can be done online using Ministry of Justice' 'Money Claim Online' website but only if claim is for fixed amount of less than £100,000. 

...

• Hevaily front loaded in terms of cost and work - LASPO sorting budget is good but can be seen as hassle. 
• Pre-action protocols and allocation questionnaire time consuming and complex. 
• Civil Procedure Rules have had a lot of ammendments casuing a lack of clarity.
• There is an adversarial approach which may destroy working relationships. 
• Formal an intimidating to many individuals. 
• lack of legal funding for small claims and limitations for other cases. 
• Increase in court fees and problems in enforcing small claims have reduced the number of small claims as they are less cost effective. 
• Longer delays than ADR. Fast-track still takes on average 58 weeks. 

Advantages: 

• Legal representation not required - costs on average £1200-£3000 per day (cheeper)
• Either a free service or cheeper than court. (West Kent Independent Mediation Service is free.
• Decisions dont need to be based strictly on the law. Can be based on commercial commonsense. 
• Avoids adversarial conflict of court room. 
• Less formal/intimidating as its private and confidential. 

Disadvantages: 

• Only useful if both parties agree to cooperate. 
• No guarantee that the matter will be solved and if it isnt it may have to go to court. 
• Unequal bargaining power in some cases. 
• Amounts paid are lower than awarded in the courts
• Parties pay own legal costs
• Research found it was controlled by mediators, not people. 
• Can lead to a bullying exercise ending in unfair comprimise. 

Advantage: 

• Private so no bad publicity etc.
• Quickest 
• Cheepest as there is no requirement for legal representation. 
• Free, no need for court costs 
• Informal so less intimidating
• Good for small scale local matters, e.g. neighbours, consumers, shopkeepers. 

Disadvantages: 

• Under-used in general
• No legally binding decision
• If negotaiation doesnt work then parties may have to resort to employing solicitors to act on their behalf. 
• Increased delay/cost if lawyers need to be involved. 

Advantages: 

• Legal representation not required. Reduces cost. 
• Free or cheeper than court proceedings. - ACAS (Advisory, conciliation and Arbitration Service) 
• Less formal/intimidating than court. 
• Identifies and clarifies main issues in dispute. 
• Private. 
• 50% of claims are solved by ACAS

Disadvantages: 

• Resolving dispute usually depends on skill of conciliator and willingness of parties to cooperate 
• If it doesnt resolve, may still need court action. 
• Not legally binding 
• settlements lower
• Can reach unfair comprimise. 

Advantages: 

• Less formal 
• Cheeper as no legal representation required, but must pay for service. 
• Institute of arbitrators ensures people with recognised qualification are in control 
• Parties can choose own arbitrator and whether the matter is best dealt with a technical expert, lawyer or professional arbitrator. 
• Freedom to make own agreement (flexibility unlike court)
• dealt with in private 
• Quicker than court
• Award is legally binding/normally final. 

Disadvantages: 

• Unequal bargaining power - parties without representation at a disadvantage. 
• Legal aid not availiable.
• Expensive/delays if witnesses/lawyers are involved. 
• Usually confidential but high profile cases attract media attention.
• Rights of appeal are limited 
• Award may be challended in high court on legal grounds if procedure wasnt reasonable. 

• Eases pressure on the courts - clogges system, if more are resolved out of court it uncloggs the system. Courts couldnt handle the sheer volume of disputes.
• Lower on costs as legal representation is discouraged/not required. 
• Speed - as its flexible it is much faster, however if litigation is still necessary it may delay court proceedings 
• Informal - less intimidating to the litigants. 
• Accessibilty - can be made for a time suiting both parties and is not at a specific court/day so easier for people to get to. 
• Expertise - Arbitrators exerts in their field so he will be able to grasp issues more quickly, saving time and cost.
• Privacy - held in private to people dont  have their personal circumstances/business secrets broadcast to the public - less humiliation for losing party. 

• No legal aid availiable
• Lack of legal expertise - Where a dispute hinges on diffficult point of law, arbitrator/mediator may not have legal knowledge required which may then generate appeals, generating costly delays. 
• Imbalance of power - A more powerful party may be able to exploit the weaker party and distort mediation process to their advantage. 
• No precedent system - no guidelines for future cases which may mean that there is inconsistency in the process. However there is no reason a precedent system couldn't be established if details were kept anonymous.