In order to explore this question effectively it is necessary to establish what Alternative Dispute Resolution is, the reason for its creation and its involvement in civil disputes. One of the main disadvantages of the official legal proceedings is access to justice. Alternative Dispute Resolution also known as ADR is a mechanism that was introduced under the Legal Services Authorities Act 1987 in order to provide an alternative method to the official judicial procedures in resolving disputes, its main characteristic being to accomplish an agreement between the parties involved without the use of formal procedures or litigation. “Alternative Dispute Resolution, offers parties alternative means of resolving their differences outside actual courtroom litigation…”
The cost of litigation for those people in society who lack financial substance, are unable to afford the official legal process and therefore often loose out in disputes, the introduction of Alternative Dispute Resolution offers them a means to have the access to justice.
Alternative Dispute Resolution takes many forms all of which serve different purposes and are effective in different ways. They allow disputes to be settled with the appropriate means. The Lord Chancellors department alleged that the official court system should only be used as a last resort in resolving disputes. This connotes that the department has confidence in the alternative approaches to dispute resolution.
The method closest to the official legal system is thought to be Administrative Tribunals. A number of tribunals have been introduced over recent years and to date there are almost seventy different types of administrative tribunals set up under a range of Parliamentary Acts. It is argued that the main purpose of tribunals in the first place was to take the pressure away from the courts of solving small disputes so more time can be spent on cases with greater need.furthermore the difference between tribunals and the courts is often confusing and a matter of uncertainty
The cost of tribunals is minimalist as no court building is required and the panel is cheaper to employ than the cost of judges used in the traditional court system. As the tribunals do not have to follow any rules set by a precedent, they are flexible although some will regard the decisions as more important than others will.
There are many reasons as to why Arbitration is used. Initially arbitration is regarded as a private procedure where the public cannot gain access to any information that could at all affect either parties or the arbitrator producing a safe and fair proceeding. In addition, as there are only three people involved the disagreement is resolved, much quicker compared to the cases’ that adopt the formal legal proceedings as professional representation is not needed for this reason business people are often in favor of the process. The procedure of Arbitration is often cheaper as a result
However, Arbitration is not always portrayed in a positive light it could be suggested that because it is so privatized the public are denied the right to know of any information that could affect them. It has also been said that not all Arbitration cases are successful and if one party decides to challenge, the decision made in the process, then it becomes time consuming and costly to all parties, as legal representation will then be required.
Mediation is a further form of ADR and it covers a wide range of aspects for instance, employment, peer and family mediation. Similarly to Arbitration mediation also, involves inviting a third person known as a mediator as a means of expression however it is more informal than Arbitration because the parties never have to meet as the mediator works between the parties communicating each of their opinions. If the parties do agree to meet then the presence of the mediator is required.. Furthermore litigation entails privacy issues where mediation is confidential and rather than having a ‘winner and a loser’ like in court cases there is a mutual agreement to where both parties occur a benefit. Mediation has led to more efficient use of private and public dispute resolution resources, consequently mediation has been accepted by the public who are willing to put faith in mediation as a dispute resolution therefore suggesting that they would opt for this mechanism in their own disputes. There are a further number of limitations to the process of mediation. If an agreement cannot be subdued by both parties then the process will have been time consuming and costly to the parties. In order for the process to be private, a great amount of trust and confidence must be placed on the mediator and in the parties, themselves as one may be looking for publicity to help their cause. “If they could not do this without help, then an independent mediator should have been recruited to assist. That would have been a far cheaper course to adopt.
In addition to mediation, the process of Conciliation has been introduced as a form of Alternative Dispute Resolution. It is advancement on mediation in the terms of the mediator/conciliator being able to suggest and enforce the grounds for which a compromise should be made. The Disability Conciliation service is almost identical to mediation as the parties meet but in ACAS conciliation the conciliator usually negotiates terms of the agreement to the parties individually often over the phone. The term Collective conciliation is illustrates talks between two representative groups these are often unions and employers. ACAS is often brought in to provide conciliation services for this type of situation.
Negotiation is the process whereby both parties come to a compromise with the use of a third person known as the negotiator. It has been suggested that negotiation takes place in all forms of ADR as it is defined as the communication between parties that effectively results in a resolution to their dispute.
As a conclusion, Alternative Dispute Resolution is encouraged by the courts and in some cases enforced. ADR has had a major impact on the way disputes are resolve. The role of the court has become minimal and in forms such as Arbitration the arbitrator’s involvement has increased fulfilling the focal purpose of Alternative Dispute Resolution; to reduce the workload of the official formal courts.