Different Types of ADR and their Advantages & Disadvantages
Resolving issues in court with Judges and Juries costs time and money. To prevent cases from reaching this stage there is a process called Alternative Dispute Resolution (ADR). ADR is a collection of different mechanisms that are used to resolve small cases; for example, boundary disputes and leasehold agreements. The main mechanisms are; Arbitration, Mediation, Conciliation, and Ombudsman. However, there is also Early Neutral Evaluation, Expert Determination, Med-Arb, Neutral Fact Finding, and Utility Regulators. In this part of the essay, I’m going to focus on the main four mechanisms (The English Legal System, 18 ed, G.Slapper & D.Kelly). The 1999 Civil Procedure Rules allow judges to pause a court hearing in order for the parties to try and solve their dispute using ADR methods (The English Legal System, J.Martin 2016). Courts try to encourage parties to do this for a number of reasons. Two of these reasons are; they may feel expert knowledge is required and ADR is a much more private method of solving a dispute (Alternative Dispute Resolution in property conflicts, J.Hockey).
Arbitration, this is when each party brings someone else in resolve the dispute for them. This is called an arbitrator; they may be a lawyer or an expert. the arbitrator will make a decision based on the law, their decision is called an award. This is legally binding and may be enforced in court (The English Legal System, 18 ed, G.Slapper & D.Kelly). The Arbitration Act 1996 ensures that private arbitration follows certain principles. These are – “the object of arbitration is to obtain the fair resolution of disputes by an impartial tribunal without unnecessary delay or expense; the parties should be free to agree how their disputes are resolved, subject only to such safeguards as are necessary in the public interest.” (The English Legal System, J.Martin 2016).
Mediation, a mediator is neutral to both parties. It can be separated into two types; evaluative and facilitative. Evaluative mediation is when a mediator assess both sides of the dispute to find the legal strength of them. Facilitative mediation is when a mediator works confidentially with both sides to help them come to an agreement. If mediation is successful in reaching an agreement, the terms are written into a legally binding contract. (The English Legal System, 18 ed, G.Slapper & D.Kelly).
Conciliation, this is similar to mediation in the sense a third party is brought in to help resolve the dispute. however, the Conciliator will be more influential in the final outcome. They will have to come up with grounds for compromise and suggest possible reasons for a settlement to be achieved (The English Legal System, J.Martin 2016). This mechanism is very similar to Mediation and many now use Mediation instead of Conciliation as they regard them as the same mechanism (The English Legal System, 18 ed, G.Slapper & D.Kelly).
Ombudsmen, this is a service that aims to resolve complaints and issues caused by public and private sectors. These can include; breach of obligations, unfair treatment, avoidable delays, and many others. their role often uses Mediations as a form of finding common grounds and a potential settlement. The decisions made aren’t legally binding but some can be enforced by court. The Property Ombudsman is an organisation that provides consumers better protections for selling and buying and landlords and tenants. They provide conflict resolution services and aim to improve the standards of service in residential property. (Alternative Dispute Resolution in property conflicts, J.Hockey).
Advantages & Disadvantages of ADR, there are many advantages to using ADR instead of going to court. The biggest being cost, the average cost of litigation using court is £500,00 and can sometimes be 10 times that. Whereas the typical cost of a mediator is around £2,000 a day. This will result in a much lower end cost for both parties. ADR is less stressful than court, it is also more flexible, much faster, and private. Another big advantage is that courts will only award a select number of remedies, using ADR you can come to your own agreement with any type of remedy. For example, if the issue was a faulty good then it could be repaired or replaced, in court, it is most likely that it would be solved with an amount of money. (The English Legal System, J.Martin 2016). However, ADR only works when the parties can cooperate and are kind to find a resolution. If one (or both) of the parties believe in ‘the principle of the matter’ then there is no point in using ADR. This idea of ‘the principle’ can cost a lot of money, an example of this is Egan v Motor Services (Bath) Ltd  here a claim for £6,000 damages cost £100,000 in fees. Also, if a legal issue comes up and legal advice is required a person of low income would not be granted this, they would need to pay for one unlike in court where one would be provided for them Other disadvantages are; Imbalance of Power (where one party may exploit the other in the negotiation process and warp the mechanism(s) used when trying to resolve the dispute) and No System of Precedent (this means that there is nothing to base a decision on other than the merits of each parties case). (English Legal System, S.Wilson, R.Mitchell, A.Storey, & N.Wortley 2009).
There are two cases within the property disputes that show the court suggesting and ordering the use of Mediation as a form of ADR. One; Valentine v Allen  EWCA Civ 915, in this case, the dispute was over rights of way between neighbours. The trial judge suggested the parties used mediation. Two; Shirayama Shokusan v Danovo Ltd  EWHC 3306 (Ch), this case was a dispute between a landlord and tenant in a commercial tenancy. In this case, the Blackburne J in the Chancery Division ordered the parties to try mediation. (English Legal System, S.Wilson, R.Mitchell, A.Storey, & N.Wortley 2009).
In conclusion, the main advantage of ADR is cost, but by saving money one losses the legal help. This may cause a resolution on party is not happy with. But with 90% of mediations ending in a successful settlement, it is clear to say that ADR is a much better way to resolve a solution and have two parties that are happy with the outcome. With them being so successful courts will often encourage parties to try to use them before resorting to using court.
A Judges role is judicial, not legislative. However, when an act is passed by parliament the wording is often such that if a judge based his decision on the literal meaning of the act many people would not be found guilty. These people could be doing something that is considered dangerous; many people would believe their actions are illegal. To prevent these people from ‘getting away’ there is an act in place called the Interpretation Act 1978. This Act allows judges to interpret Acts passed by the government; if they believe that the wording of the Act results in an unjust decision. There are three rules that judges can use to interpret Acts when and how they see fit. These rules are; The Literal Rule, The Golden Rule, and The Mischief Rule. If a judge believes that a by applying one of these rules to an Act a fair and just result will prevail, then the Interpretative Act 1978 gives the judges power to do this.
The Literal Rule, this rule focuses on the direct meaning of the words and punctuation used in the Act. It uses dictionary definitions to ascertain the ‘literal’ understanding of the Act. “As Lord Diplock said in Duport Steels Ltd v Sirs  1 WLR 142, ‘the role of the judiciary is confined to ascertaining from the words that Parliament has approved as expressing its intention what that intention was and to give effect to it’. (English Legal System, S.Wilson, R.Mitchell, A.Storey, & N.Wortley 2009). This quote states that this rule can only ever be used to understand the direct meaning of the Act. Another quote stating a similar view is as follows; “This idea was expressed by Lord Esher in R v Judge of the city of London Court  when he said ‘If the words of an act are clear then you must follow them even though they lead to a manifest absurdity. The court has nothing to do with the question whether the legislature has committed an absurdity’. (The English Legal System, J.Martin 2016).
I am going to compare two cases now. One case will show the accused being found unfairly guilty and the other will show the defendant being found unfairly innocent. Whiteley v Chappell , in this case, the defendant was charged with pretending to be someone entitled to vote. However, the defendant was found not guilty as the person he impersonated was dead. A dead person is not ‘entitled to vote’ thus in the literal meaning of the words he had not pretended to be someone entitled to vote (The English Legal System, J.Martin 2016). This case was deemed to be unjust and that the defendant should have been found guilty. London & North Eastern Railway Co v Berriman , in this case, a railway worker was oiling points along the railway line and was killed by a train. His widow believes she was entitled to compensation because there was no look-out man and tried to claim. The Fatal Accidents Act states that a look-out man is required when men are working on a railway line ‘for the purposes of relaying to repairing it’. These words were taken literally by the court and they deemed that oiling points was maintaining the railway line and not repairing or relaying it. Thus the widow didn’t receive any compensation (The English Legal System, J.Martin 2016). These two case show how the Literal Rule can cause the interpretation of statue to be unjust.
The Golden Rule, many believe there are two meanings of this rule; the narrow meaning and the wider meaning. The narrow meaning is used when there are one than one different meaning of the same word in a statue. If there is able one meaning then this meaning must be used. Thus, the meaning that will avoid absurdity or inconvenience is chosen. The wider meaning of this rule is that there is only one meaning for the words used in the statue, but using this meaning would result in an absurdity or inconvenience. In this case, the court can use the golden rule to modify the meaning of the words (The English Legal System, 18 ed, G.Slapper & D.Kelly).
The narrow meaning of the golden rule was used in Alder v George , in this case, the defendants had obstructed HM Forces whilst in a prohibited place. The Official Secrets Act 1920 states it’s an offence to obstruct HM Forces ‘in the vicinity’ of a prohibited place. The defendants said the literal meaning did not involve anyone IN a prohibited place only ‘in the vicinity’ (near) a prohibited place. The court however, ruled the defendants guilty because it would be an absurdity if they were acquitted for being IN a prohibited place causing obstruction but found guilty for doing the same thing only NEAR (‘in the vicinity’) of a prohibited place (The English Legal System, 18 ed, G.Slapper & D.Kelly). An example of the wider meaning being used is in
The Mischief Rule, this was first defined in Heydon’s case . It was said that the court should consider four points (The English Legal System, 18 ed, G.Slapper & D.Kelly) ;
1) – What was the common law before the passing of the statue?
2) – What was the mischief in the law which the common law did not adequately deal with?
3) – What remedy for that mischief had parliament intended to provide?
4) – What was the reason for parliament adopting the remedy?
These rules imply the court must find out what the law was before the passing of the statue, determine what mischief the statue tried to cover, but haven’t. The court needs to interpret the statue to ensure this mischief is included (The English Legal System, J.Martin 2016).
An example of the Mischief rule being used in a case is Royal College of Nursing v DHSS . The Abortion Act 1967 states that only a medically registered practitioner (a doctor) could carry out abortions. The Offences Against the Person Act 1861 states that it is an offence for any person to carry out an abortion. With advances in medical abortions, it became easier and cheaper to have a hormonal abortion rather than a surgical abortion. A nurse can perform a hormonal abortion; this leads to this case, where a nurse performed a hormonal abortion. As a nurse isn’t a medically registered practitioner, the nurse was breaching the Abortion Act but not the Offences Against the Person Act. Thus, the nurse was not prosecuted as the court believed Parliament’s intention was to get rid of back street abortions with both Acts. (The English Legal System, J.Martin 2016).
To conclude, the golden rule is more similar to the literal rule but takes on the characteristics of the mischief rule in terms of modifying the statue to avoid an absurd and unjust result. These rules have helped judges avoid unjust results.
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