The agreement to go to arbitration can be made by the parties at any time. It can be written into a business contract by what is called a Scott v Avery clause or the parties may just agree on arbitration when a dispute arises. The parties can agree the number of arbitrators who will hear their dispute. It could be three, two or just one person. The parties will normally appoint someone who is an expert in their particular area of business. There is also the Institute of Arbitrators who will provide trained arbitrators to parties who wish to settle a dispute.
The actual procedure to be followed in any arbitration hearing is left to the parties to decide. Therefore, arbitration hearings can take many forms. The parties can decide on a paper arbitration, which means the parties submit everything to the arbitrator in writing, who will then read everything and make a decision. However the parties can also have a hearing at which they appear and give evidence and witnesses may be called. The decision made by the arbitrator is called an award and is legally binding on the parties.
The advantages of ADR is Speed as Settling a dispute using ADR is usually much quicker than using the court system
Expertise as a specialist from within a particular trade or industry is able to suggest a reasonable solution which will be acceptable to the parties involved. A judge is unlikely to have specialist knowledge, other then in the law.
Privacy as ADR is conducted in private, therefore avoiding publicity from the media. The public are also unable to attend.trhis will be good for companies as cases may discredit their business
Parties may be able to remain on good terms as the aim of ADR is to find a compromise solution which is acceptable to both parties. Court proceedings create a winner and a loser. Using ADR to settle a dispute means businesses can remain on good terms and continue to trade with each other once their dispute is resolved.
Costs to the Parties as all forms of ADR are far cheaper than taking a case to court.
Costs to the State as very case resolved using ADR saves the Government money.
Saving of Court Time - Every case solved through ADR stops the courts being over burdened with case.
However there has been a consistent lack of demand for ADR when when it is provided at very low cost. The volume of mediation is low as there has been resistance to the idea of mediation. The desire for vindication and public acknowledgement of a wrong suffered can be very strong. The settlement rates of cases going for mediation have also dropped dramatically. This could be due to half hearted attempts to comply with mediation for fear of being judged unreasonably for not considering mediation.
To increase the demand for ADR new rules under the Legal Aid scheme stated that an application for legal aid for representation may be refused if there are ADR options which ought to be tried first. The government has also stated that it would attempt to resolve all disputes involving government departments through ADR wherever possible.
b) Lord Woolf , assess to justice(final report ,July 19696),identified a number of principles which the justice system should meet in order to ensure assess to justice. the system be just in results it delivers; be fair in the way it treats litigants ; offer appropriate procedures at reasonable costs ; deal with case at responsible speed ; be understandable to those who use it ; be responsive to the needs of who used it; provide as much certainty as the nature of the particular case allows and be effective; adequately resourced and organised.
The problems three main problem that were in the justice system was that that the cost were too expensive as often the costs exceeded the value of the claim .The dealy that there was to bringing a case to a conclusion and the complexity of the cases
Judicial Case Management (JCM) was one of the most significant of the reforms. The involvement of the courts in the active management of litigation away from the lawyers was designed to bring cases to trial quickly and efficiently by adhering to strict timetables. JCM also introduced the principle of proportionality where the financial and time resources of the courts are applied appropriately according to the small claims track, fast track or multi track depending on the financial value of the claim.
It also introduced a new principle: proportionality. Not only should the time and money spent on a case reflect what was being litigated over, the resources of the courts should also be applied appropriately, taking into account other calls on the courts’ limited time and assets.
Zander’s criticisms of the reforms however focused on the fact that they concentrated on the lawyers and courts when the real problem was with the litigious and compensation seeking culture of the English public. The problem with costs will also not go away as there will be front loading of fees by the lawyers and this may even act as a deterrent as litigants will need to come up with the money at a very early stage. There is still no sizeable decrease in delay as the courts are still under resourced in terms of manpower and technology.
Lawyer’s work actually increase as a result of having to respond to the court’s management directions and tended to increase rather than reduce costs. Multi track cases with two pre trial hearings will generate even more additional costs and this is reflected in front loading of costs which does not solve the problem of expensive litigation.
Pre Action Protocols were also proposed where there was a strict timetable for the exchange of documents and claims and encouragement of a culture of openness between the parties by having earlier and fuller exchange of information to facilitate pre-action investigation and to encourage early settlement. However pre action protocols have also resulted in the front loading of costs. Some complex cases involve lengthy pre-action stages
In factually complex cases, the pre-action stage can be very time consuming and be extremely costly, there is a potential irrecoverability of elements of pre-action costs if there are claims that are not subsequently pursued in the proceedings. This may deter litigants from doing all they can at the pre-action stage and may simply comply with the requirements of the Pre-Action Protocol by indulging in formalities only.
To tackle the root of the problem we would have to look into alternative ways to settle disputes rather than depending solely on adversarial trials. It would appear that the adversarial system goes against achieving the objectives of the civil justice system which was to provide for processes that were just, accessible, efficient, timely and effective. The motivation for having such a platform is clear enough : to encourage people to conduct their daily affairs with the knowledge that they would have recourse to the law
Under this system, the lawyers dictate the intention of the parties resulting in a boxing ring culture rather than a solution seeking culture. The courts acts as umpire taking a hands off approach in the matter of hand so long as the complex boxing ring procedures are followed. The complex procedures involved meant time and costs which are unsustainable to private individuals and small companies which meant that the Rule of Law is unfavourably balanced on the side of the party with expenses to worry about
The reforms were implemented in the Civil Procedure Rules implemented in April 1999 and the courts were given power to order parties to attempt mediation failing which the courts could impose cost penalties or cost sanctions on the winning party. This was put into practice in cases such as Dunnet v Railtrack plc where it was stated that if a party rejected ADR out of hand, they would suffer the consequences of a discretionary order. In Halsey v Milton Keynes General NHS Trust it was added that members of the legal profession should routinely consider with their clients whether their disputes are suitable for ADR.
Moving towards a more inquisitorial system in which the judge would take a more investigative role and the two parties would be required t cooperate by revealing all the evidence to each other. Reducing the time and costs factor by cutting down on the number of cases that eventually go to court with greater use and legitimacy of the ADR process. This would mean making it compulsory for selected cases to solve their disputes via this route.
