Bhavish S Davar
ADR enables parties to reach an agreement without the need to go to court. It allows parties to settle amicably without the lengthy, costly and draining formal procedure of courts. It was introduced to achieve a sense of justice for all citizens who lack the financial means to go through the litigation procedure. The Woolf Report and the Jackson Reforms put greater emphasis on ADR and less on adversarialism, to promote access to justice for ordinary people. The Civil Procedure Rules 1998, entitled courts to terminate proceedings, if they believed the dispute could have been resolved with the use of ADR.[1] The introduction of the Rules was an indication that the courts were promoting the use of ADR over litigation. Supported by the case of Dunnet v Railtrack,[2] where it was held that any party’s refusal to use ADR would incur cost penalties. This rule was overruled by the Halsey[3] Guidelines, which rejected the idea of compelling parties to pursue ADR. LJ Lightman stated that, it is up to the court to determine whether the refusal of ADR was reasonable or not.[4]
There is an interrelation between the Rule of Law and access to justice being upheld and this link was first established by Professor Mauro Cappelletti.[5] Consequently, whilst establishing a link between the Rule of Law and upholding access to justice, he also shed light on the correlation between access to justice and ADR. Accessibility and fairness are the core values to uphold access to justice.[6] ADR and litigation have a similar procedure and common objective, which is to settle disputes amongst the parties. The fairness of the decision made, can be questioned when a party is unwillingly coerced into using different forms of ADR. Informed consent to use ADR to resolve disputes promotes human dignity and promotes party autonomy to the decision being reached.[7] Owen Fiss supported the idea of consensual ADR in order to get justice.[8] Consensual ADR ensures access to justice being delivered in a fair manner.
Since ADR’s implementation in England, we have witnessed an increase in interest by the citizens but the focus has not yet significantly shifted to the process of ADR. This is primarily because disputants have an embedded confidence in the English courts. This article will demonstrate why this traditional belief in the courts is amiss and the reasons surrounding why individuals prefer the court system over ADR.
The process of arbitration is a form of private adjudicative justice in which an arbitrator is appointed (third party) to resolve a dispute between parties. The arbitrator is responsible to form an agreement between the parties. The decision passed by an arbitrator is known as an Arbitral Award, which is usually binding upon the parties. The law recognizes and enforces the award internationally under the New York Convention 1958. The introduction of the Arbitration Act 1996[9] provides guidelines regarding the process of arbitration. Arbitration aims to deliver a faster and reasonably cheaper resolution. Unlike litigation, arbitration is confidential as the arbitrator is appointed by a tribunal and the information remains between the arbitrator and the parties. Arbitration is encouraged in business disputes as evident in Premium NAFTA Products v Fili Shipping,[10] where it was highlighted that the use of arbitration in disputes is beneficial over the court process, as it enables an agreement between the two parties, while maintaining the relationship. In the event where the disputed parties would have sought the litigation process, the relationship would have deteriorated and thus, the flow of their business would have decreased, since only one party benefits from the decision made by the court.
Arbitration has similar elements to that of the court, but the difference lies in the confidentiality aspect and that the procedure is informal as compared to the courts. The wider question arises, whether this form of ADR provides access to justice? Arbitration being similar to courts and the fact that the decision is binding upon parties raises uncertainty surrounding why individuals should prefer arbitration over courts if they are perceived similar by the layman. Impartial arbitrators may hinder with the fairness characteristic of arbitration. In some instances, litigants cannot pay the fees of the arbitration process. This form of ADR has diminished the access to justice principle in the context of employment and consumer arbitration. This is due to the nature of the agreement, in which it is difficult to appeal to court (as the employees sign contracts which prevent them from appealing to court), consequently, denying access to courts, hence, interfering with the principle of access to justice. This further hinders the process for a fair trial[11] under Article 6 of the European Convention on Human Rights.[12] The Paris Court of Appeal held that there should be no denial of justice where the litigant cannot pay for the process of arbitration.[13]
While arbitration has proved that it is an effective model of ADR, the competence of the arbitrator is often unquestionable. Hence, it can be confidently stated that arbitration does provide access to justice but at the cost of surrendering an individual’s rights to the judge.
Mediation and Conciliation are a form of non-adjudicative justice, which includes a third party (mediator and conciliator) who is appointed by parties in a dispute or by courts. This form of ADR is less formal than arbitration and provides more flexibility to the agreement made. A mediator’s role is to facilitate the conversation between the disputing parties and to reach a mutually amicable settlement which is acceptable to both parties. This is confidential, cheap and provides an accelerated settlement. In mediation, the mediator cannot impose a settlement (non-binding agreement) upon parties. The parties decide whether they want to settle to the arrangement put forward by the mediator. This method is preferable to the parties because in the event they fail to settle, they will potentially have a decision imposed upon them by the judge, as the matter is likely to proceed to arbitration or litigation.[14]
Mediation is commonly used in cases of divorce,[15] personal injury, employment, insurance and children cases. It has proven to be effective as it is a consensual process. Mediation is disallowed in child abuse and domestic violence cases, as the mediators decision is not binding upon the parties and in these circumstances, one has to order restraining orders in order to prevent further harm to those who are vulnerable. The Lord Chancellors Department Report (2018), indicates 62% of cases which adopted the practice of mediation found it more effective and efficient than litigation.
In Conciliation, a third party is appointed in order to assist the disputing parties to reach a settlement. Conciliation is largely looked upon in labour and consumer disputes, with the aim to rekindle the relationship between two parties.[16] Unlike in mediation, where the meeting is between the two parties which may make the scenario uncomfortable for either party, the role of the conciliator is alike the negotiator in a proceeding. Advisory, Conciliation and Arbitration Service (ACAS), enables a conciliator to discuss the issues with both the parties to gain a better understanding of the situation while upholding each party’s rights and interests. ACAS conciliation is about parties knowing and understanding their rights as opposed to the vindication of their rights in court. The Enterprise and Regulatory Reform Act, 2013 made it mandatory for a pre-claim conciliation before bringing a claim to the tribunal. The question of choosing for a pre-claim conciliation should remain with the party as opposed to legislation being passed with the intention to impose on the parties to attend this form of ADR before proceeding to litigation. Nonetheless, ACAS conciliation is a step forward to promote access to justice for citizens. In 2002, statistics for dispute settlement displayed an 81% success rate, indicating that this form of ADR is highly effective.[17]The UNCITRAL model lays down the guidelines that mediators and conciliators should follow. To name a few, the principle of neutrality, respecting confidentiality and acknowledging the parties’ rights.
The use of ADR, particularly mediation, dropped with the implementation of the Legal Aid Sentencing and Punishment of Offenders Act, 2012 (LASPO). An Act, although enacted by the government to promote ADR prior to using the court process,[18] backfired, since legal aid was denied in civil cases with the intention to stabilize the financials of the English courts. Legal aid was permitted for mediation but the lack of knowledge and awareness surrounding it, led to a decline in the use of mediation. This is a prime example of why lawyers and courts should make citizens aware of different cost-effective alternatives, allowing parties to have equal bargaining power in a dispute. In disputes, parties seek the expertise of lawyers who charge exorbitant amounts and the denial of legal aid prevents parties from seeking the needed expertise. Therefore, LASPO may hinder access to justice, which is a pillar of the Rule of Law.
Party autonomy and self-determination play a vital factor in differentiating the courts from mediation. Coercing a party to use a method of ADR by imposing cost penalties, in the event they failed to do so, questions the effectiveness and willingness of a party to mediate in unwelcomed circumstances.[19] Diminished consent mediation could be troublesome in scenarios where there is unequal bargaining power between the parties. This is because in court annexed mediation, the mediator could be biased, hence, creating unfairness to the process and denying the under privileged access to justice.[20] On the contrary, it is argued that compelling parties to mediate will expose a large number of people to the benefits and experience of mediation.[21] Therefore, in the event where a party wants to pursue mediation, the process should be voluntary, allowing both sides to benefit from the justice being provided.
The use of ADR has been encouraged and enforced by the courts. In Cowl v Plymouth City Council,[22] it was held that the parties should consider the use of ADR before commencing legal proceedings. The alternative method has been effective in order to reduce the burden on the courts in civil disputes and has allowed courts to allocate the necessary amount of resources to the civil process of dispute resolution. In Halsey v Milton Keynes NHS Trust[23] and Burchell v Bullard,[24] an encouragement of ADR in civil disputes is evident. Halsey laid down a set of guidelines, regarding whether it was appropriate for parties to resort to court proceedings and not choose an ADR.
The use of ADR voluntarily or by compulsion has raised several ambiguities in providing access to justice and whether it is justified at the cost of meaningful consent.[25] A party should have the freedom to use ADR or the court to resolve their dispute to ensure a free and fair transparent system of justice without the use of coercion. LJ Jackson supports education and facilitation of ADR as opposed to the coercive nature of the court.[26] Civil Mediation Council 2003 and Mediation Information Assessment Meetings have been established to support and promote the use of ADR. Access to justice movement aims to protect the rights of citizens by not restricting their access to courts. With the advancement of technology, Online Dispute Resolution has been proposed in order to achieve a greater sense of access to justice. The European Union elaborated upon access to justice to embrace judicial and extrajudicial dispute resolution alternatives.[27]
ADR should be considered as an alternative to the courts and not a substitute to it. By maintaining this accessibility and transparency within the consensual decision-making process, it allows the parties to explore the legitimacy of different types of justice under ADR. Civil justice is on path for success by providing awareness, availability and encouragement of ADR to resolve a dispute by administering access to justice to all.
Bhavish S Davar is an Intellectual Property Attorney at P.S.Davar & Co.
Photo Credits: Leon Neal/Bloomberg
Notes:
[1] Kinstreet Ltd v Belmargo Corp Ltd. (1999) ADR.L.R. 07/23
[2] [2002] 2 AII ER 850
[3] Halsey v Milton Keynes NHS Trust [2004] EWCA Civ 576
[4] Hurst v Leeming [2001] EWHC Ch. 1051
[5] M. Cappelletti, “Alternative Dispute Resolution Processes within the Framework of the World-Wide Access-to-Justice Movement” (1993) pg. 282–296.
[6] J. Nolan-Haley, ‘Does ADR’s “Access to Justice” Come at the Expense of Meaningful Consent?’. (2018) pg. 380.
[7] ibid pg. 391.
[8] Owen M. Fiss, Against Settlement, Yale L.J. (1984).
[9] Implemented by the United Nations Commission on International Trade Law (UNCITRAL).
[10] [2007] UKHL 40
[11] It should be proportionate under Alassini v Telecom Italia SpA (Joined cases C-317-320/08 [2010] ECJ).
[12] ibid n (6) pg. 377.
[13] E. Loquin, ‘Notions of conciliation, mediation and arbitration’. (2019) pg. 4.
[14] H. Genn, ‘What Is Civil Justice For? Reform, ADR and Access to Justice’. (2013) pg. 404.
[15] Family Law Act 1996.
[16] Conciliation Act 1896.
[17] ACAS Annual Report 2001-02.
[18] ibid n (14) pg. 403.
[19] ibid n (6) pg. 376.
[20] ibid pg. 387.
[21] ibid n (14) pg. 408.
[22] [2001] EWHC Admin 734
[23] [2004] EWCA Civ 576
[24] [2005] EWCA Civ 358
[25] ibid n (6).
[26] ibid n (14) pg. 416.
[27] Directive 2008/52/EC of the EU Parliament (2008).
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