There is no denying that court action is a costly experience and one that many people in the modern day will avoid for this reason. So where does that leave individuals who do not think they can get access to justice? This article will consider how far litigation remains to be the only real means of resolving a dispute, or whether there are, in fact, other options available.
Most people would consider litigation as the main mechanism by which a dispute can be resolved. Traditionally this was true. As the legal system has developed and citizens’ rights have increased, the English courts have become much more complex in their operation.
While there are benefits associated with taking a dispute to be heard before a court, the popularity of doing so has caused countless problems for the courts. Due to the sheer volume of cases that were being seen by the courts, the process became very slow and meant individuals could be waiting months, even years, to have their case seen before a judge and a resolution provided. This length of time only increased more so if an individual was unhappy with the judgment and wished to appeal the decision. The time element of litigation became very unpredictable and many commentators would argue that this significantly restricted access to justice in the United Kingdom.
The cost of litigation became extremely expensive. This began to concern a social class argument, raising issues around the equality of rich and poor litigants, the latter of which would have been unable to pursue their action. Moreover, the adversarial characteristic of litigation was, and still remains, an element that concerns many lay people who are unfamiliar with the system and the process of pursuing a dispute in court.
Lord Woolf investigated issues regarding the litigation system in the 1990s. He came up with a variety of recommendations, which were implemented through the Civil Procedure Rules in 1997. They sought to address the issues mentioned above, ultimately creating a proportionate and just system that allowed all to have access to the court system. Despite attempts to increase the efficiency of the litigation system in the United Kingdom, there are still concerns as to how far this aim has been achieved.
More recent times have seen the development of alternative dispute resolution (ADR). This has been driven largely by the oversubscribed and arguably inaccessible nature of the litigation system in the UK.
Essentially, this method seeks to act as an alternative to the court system, while still providing a remedy to disputing individuals where possible. This approach is much more informal and considerably less adversarial than litigation, aimed at reaching a settlement based on compromise by both parties. This method has numerous benefits. Particularly attractive when compared to litigation is the reduction of time and cost associated with pursuing ADR, despite the potential delay if a claimant wishes to appeal a decision. Furthermore, if there is a specialised issue, ADR seeks to use an expert to assist in the decision making process. This is useful when considering that a judge may deal with cases in which they have a very limited area of expertise. Moreover, this approach can be very beneficial to businesses as it promotes the continuity of relationships between parties for future dealings.
The parties will be able to choose which method of ADR they would like to pursue. There are four types each offering different levels of intervention. Each type of ADR will be assessed in turn.
Firstly there is negotiation. This is arguably the most straightforward and least interventionist method of ADR. It simply involves direct communication between the two disputing parties and their representatives with the aim of reaching a settlement. The representative may have little involvement compared to some other methods of ADR, often resulting in better compliance by the parties in terms of adhering to the agreement going forwards.
The second method of ADR is mediation. This is considered to be the main method by which parties will use ADR. Mediation involves a third party who will assist the disputing parties to communicate in order to work towards an agreement. This tends to be useful in scenarios where the disputing parties would not usually communicate effectively or have previously struggled to reach a solution. Mediators tend to be professionally trained and can be found most commonly in cases concerning family issues e.g. divorce and child care and consumer or commercial disputes. The mediation process will involve a discussion between the parties, followed by meetings and ultimately a voluntary contractual agreement reached by the parties.
The third type of ADR is conciliation. This method is fairly similar to mediation however it tends to be considered as a more interventionist approach. The conciliator in these situations will actively try to promote settlement and suggest possible options or areas of potential concession. This method has increasingly been used in the context of industrial disputes, with the growth of organisations such as the Advisory, Conciliation and Arbitration Service (ACAS) to assist with such issues.
The final method of ADR is arbitration. This is a more adjudicative method and it can be considered to be the most similar to litigation. However, there is a considerable amount of party autonomy, which gives the disputing parties the option to decide how to shape their arbitration. Evidently, this provides much more flexibility than the option of litigation. The arbitrators in these scenarios will often be experts in a particular field and so this is a popular method of dispute resolution in the commercial world, owing to the requirement of expertise in specific areas.
The growth of ADR in recent times has been significant. Under the Civil Procedure Rules, ADR should be encouraged before pursuing court action as many disputes can be settled outside of court. Cost penalties have also been introduced for the refusal of ADR, highlighting the importance of focusing on this method in future.
Whilst ADR is not compulsory and doesn’t always resolve disputes, it saves considerable court resources and saves a lot of time and money that may otherwise be wasted on litigation for the disputing parties.
Traditionally, litigation would have been the only route to be seriously considered by parties wanting to resolve a dispute. This has led to a considerable backlog of cases, a very slow system and, ultimately, too much work for the court system to handle efficiently. The growth of ADR has provided a viable alternative for those who were put off by the adversarial nature of litigation, the cost or the time delay. Above all, this contributes to the accessibility of justice in the United Kingdom and ensuring that we have a fair and just legal system that is available to all. The most ‘suitable’ option is arguable and undoubtedly depends on the type of dispute, however, it is very likely that ADR will continue to grow over the coming years and the court system remains overburdened. Which would you choose?