Private Arbitration is now governed by the Arbitration Act 1996 and section 1 of that Act sets out the principles behind it. This says that (a) the object of arbitration is to obtain the fair resolution of disputes by an impartial tribunal without unnecessary delay or expense.
Mediation In contrast to arbitration, mediation is a process whereby the parties involved utilize an out-side party to help them reach a mutually settlement. Rather than dictate a solution to the dispute between labour and management, the mediator—who maintains neutrality throughout—suggests various proposals to help the two parties reach a mutually agreeable solution. In mediation, the various needs of the conflicting sides of an issue are identified, and ideas and concepts are exchanged until a viable solution is proposed by either of the parties or the mediator. Rarely does the mediator pressure on either party to accept a solution. Instead, the mediator's role is to encourage clear communication and compromise in order to resolve the dispute.
Mediation can be a tremendously effective tool in resolving disputes without destroying business relationships. It allows parties to work toward a resolution out of the public eye (the courts) without spending large sums on legal expenses. Its precepts also ensure that a company will not become trapped in a settlement that it finds unacceptable (unlike an arbitration decision that goes against the company). But Hayford commented that "mediation only works when the parties employing it are willing to go all out in the attempt to achieve settlement," and he warned that "the mediator must be selected carefully, with an eye toward the critical attributes of neutrality, subject matter and process expertise, and previous track record." Finally, he noted that with mediation, there is a "lack of finality inherent in a voluntary, conciliation-based procedure."
Conciliation is an (ADR) process whereby the parties to a dispute (including future interest disputes) agree to utilize the services of a conciliator, who then meets with the parties separately in an attempt to resolve their differences. Conciliation differs from in that the conciliation process, in and of itself, has no legal standing, and the conciliator usually has no authority to seek evidence or call witnesses, usually writes no decision, and makes no award. Conciliation differs from in that the main goal is to conciliate, most of the time by seeking concessions. In mediation, the mediator tries to guide the discussion in a way that optimizes parties’ needs, takes feelings into account and reframes representations.
Employment cases is an area of law where alternative dispute resolution has long been used in the shape of The Advisory Conciliation and Arbitration Services (ACAS) which offers a range of ADR services in the field of disputes between employers and employees.
The scheme of the Advisory Conciliation and Arbitration Service, which mediates in many industrial disputes and unfair dismissal cases; the role of ombudsmen in dealing with disputes in the fields of insurance and banking, and in complaints against central and local government and public services; the conciliation scheme offered by courts and voluntary organisations to divorcing couples and the arbitration schemes run by the Institute of Arbitrators for business disputes.
In conclusion one could say that ADR plays a substantial role in solving most of the cases outside the civil courts today. It is a good way of solving disputes effectively and affordably and one could also agree with the saying that Alternative dispute resolution (ADR) has been described as being 'at the heart of today's civil justice system'.
(b) To what extent, if any has the reform of the civil justice system has been successful?
In 1995 Lord Woolf undertook an in-depth and all encompassing review of the civil justice system as it was then. This review as called “Access to Justice” and it was charged with exploring all the aspects of the civil justice system.
This report identified the problems in our previous system and also identified a number of principles which the civil system should meet in order to ensure access to justice. The problems that were identified were: (a) The process was too expensive, costs often exceeded the value of the claim (b) The process was too slow in bringing cases to a conclusion (c) There is lack of equality between the powerful, wealthy litigant and the under-resourced litigant. (d) Too uncertain: the difficulty of forecasting what litigation will cost and how long it will last induces the fear of the unknown. (e) Incomprehensible to many litigants (f) It was too fragmented in the way it is organized since there is no one with clear overall responsibility for the administration (f) court procedures were unnecessary complex (g) the environment in which litigation is conducted was an adversarial one. One of the main flaws that Lord Woolf voiced in relation to the civil justice system was that there was no clear judicial responsibility for managing individual cases implications, the long delays and the needless complexity of the cases.
The report found that virtually none of these points was being achieved in the civil courts, and the criticized the system. The report contained 303 recommendations. The most important ones proposed were: Extending small claims up to £3000, a fast track for straightforward cases up to £10,000 and multi-track cases over £15,000, with capping of costs. However, the proposal to increase was implemented before the full report was issued. Before committing itself to the remainder of the reforms, the labor Government, which came to power in 1997, commissioned the Middleton Report as a ‘second opinion’. This supported most of the Woolf proposals, but suggested that the small claims limit should be raised to £5000 and the fast track route to £15,000. As a result of the Woolf and Middleton report, the civil justice system was radically reformed in April 1999.
To combat these problems Lord Woolf’s review involved making numerous suggestions and recommendations on how to improve the civil justice system. These recommendations which were enacted in the Civil Procedure Act 1997 which came into force in April 1999 and is referred to as the Civil Procedures Rules (CPR) in 1999. The CPR provides guidance and rules for all the different situations that may occur during a civil claim, so for example Part 1 of CPR sets out Overriding Objectives. Part 3 includes of Case management Powers.
Overriding objectives is to enable the court to deal with the cases justly. This means that the court should try to: (a) Ensure that the parties in any case are on an equal footing (b) Save expense (c) Ensure that the case it dealt with quickly and fairly. Part 1 of the CPR also sets out courts duty to manage cases actively so as to further the overriding objective; this is done by the provision of a very clear and concise list of case management.
Active case management includes: (a) encouraging the to co-operate with each other in the conduct of the proceedings (b) identifying the issues at an early stage (c) deciding the order in which issues are to be resolved (d) helping the parties to settle the whole or part of the case (e) dealing with the case without the parties needing to attend the court.
One of the aims of the civil justice system is to attempt to deal with the cases without the need for recourse to a formal court hearing or it is determined that a formal court hearing is required then that the matter is dealt with expeditiously. One of the method of resolving disputes and issues at an early stage in proceedings is by way of “Pre-Action Protocols. Lord Woolf in his review of the civil justice system developed the concept of pre-action protocols as an aid to ensuring that the overriding objective was achieved. He stated in his Final Report that pre-action protocols will help to “Build on and increase the benefits of early but well-informed settlements which genuinely satisfy both parties to a dispute”
When the CPR was drafted it was decided that the style of language used to for the rules should be plain, ordinary English, and that complicated legalize should be left behind in the past. The reason behind that was that the use of such language alienated the lay person coming to the law and simply due to that fact they could not understand a lot of the procedures involved in their case. Lord Woolf, in his Final Report, commented on the rationale of introducing simpler and clearer language by stating that “I said in the interim report that one of my main aims was to modernize terminology. I have sought to remove expressions which are meaningless or confusing to non-lawyers. The various terms for methods of starting a case were changed, such as writ will be replaced by “claim” and the word “plaintiff” will be replaced by “claimant”.
One of the methods open to the parties to case to encourage and achieve early settlement can be found under Part 36 of the CPR and is called an “Offer to settle” which is more commonly known as a “Part 36 offer”.
Part 36 Offers tend to come into play when informal negotiations have broken down and one of the parties to the claim wishes to try and conclude the claim on a formal basis before the litigation reaches the courtroom. A Part 36 offer will set out the amount that party making the offer is willing to pay to settle the claim.
In conclusion one could argue that the reform of the civil justice system has been successful in many ways such as that the cases are dealt with more justly, quickly and fairly. One could also accept the fact that CPR is “a new landscape for civil justice for the 21st century” and one should also agree with the saying of Lord Woolf that “The old system prepared cases for trial. The new system prepares them for settlement”.
