There are many issues linked with the civil courts. This does not however, mean that these problems come up in every case.
The large quantity of rules and procedures that are followed in civil proceedings, means that people are often presented with huge workloads and costs almost immediately. For example, in personal injury cases it is often required that detailed statements accompanied by expert opinions are submitted. This is very time consuming and expensive for individuals and can often result in the claimant paying more in fees that they would ever hope to win from the claim.
There are strict time limits placed on most stages of the proceedings. Especially in relation to case management. It is important for the courts to impose such strict time limits to avoid one party trying to take advantage if they can. The courts are still very much adversarial despite attempts to combat this. It is argued that this adversarial approach is not contributory to future business and this is one of the reasons why some may prefer Alternative Dispute Resolution(ADR) as a way of resolving the dispute in private and outside the courts. This is why courts regularly recommend the use of ADR for personal injury claims and family related matters.
ADR refers to a series of different mechanisms that act as an alternative to traditional litigation in the civil courts. For most people litigation in the courts should be the method of dispute resolution of last resort[ ‘Alternative Dispute Resolution’, The Lord Chancellors Department, consultation paper 1999.]. Alternative Dispute Resolution techniques are widely used for settlement of disputes in all sectors of civil life especially commercial side. There are many different methods that can be used as an alternative to the judicial methods of resolution. People are now most commonly encouraged by the courts to resolve their disputes by using mediation or arbitration. The object of this essay is to conclude whether the increased use of mediation as a method of ADR has an overall positive impact and what possible shortcomings this method has.
Mediation is just one of many different forms of ADR. Mediation is a way of settling disputes by use of a neutral third party (known as the mediator) to help all parties come to an agreement. The mediator has no authority to make any decisions which are binding on the parties involved, but uses certain procedures, techniques and skills to help them to negotiate a resolution of their dispute by agreement without adjudication. The parties are not bound by any positions taken until a final agreement is made and signed, at which point it becomes a enforceable contract. Mediation aims to achieve a win-win result for the parties involved. Mediation is generally a facilitative process where the mediator concentrates on assisting the parties to define the issues. Mediation can also take an evaluative form, in which the mediator gives a judgement on the legal strength of a case[ ‘The English Legal System’ 7th Edition, Gary Slapper & David Kelly, 2016, Page 594.]. The evaluative form of mediation mirrors conciliation[ ’Evaluative versus Facilitative Mediation: A Discussion’, Alfini, 1996.].
Mediation has enjoyed increasing popularity as an important part of the litigation process over the years. For example, the European parliament published a Directive (Directive 2013/11/EU) to protect businesses who have domestic and cross border and disputes regarding transactions by requiring all EU member states to maintain a list of ADR providers that have to meet quality criteria.a 90 day time limit is also imposed by the Directive[ ‘The English Legal System’ 7th Edition, Gary Slapper & David Kelly, 2016, Page 596] which is significantly less time that most civil court proceedings. This was implemented in the UK in April 2015.
Before the Woolf reforms, mediation was used as an alternative to the relatively informal small claims process. It was assessed and provided positive results in a trial in the Manchester courts and soon after HMCS appointed small claim mediators all around the country. Mediation can take place over the phone which will significantly reduce costs and time.
The family law act of 1996, made it an expectation that before receiving legal aid for a divorce case, that a person should meet with a mediator to assess whether mediation as a viable alternative or not. However, only 20% of people who had legal aid actually became involved with mediation. Under s10 of the Children and Families Act 2014 it is now a requirement that people who require legal aid in Divorce or separation proceedings in court, firstly go to a mediation information and assessment meeting (MIAM)[‘The English Legal System’ 7th Edition, Gary Slapper & David Kelly, 2016, Page599 ]. The reasoning behind this is because mediation has proven effective in reducing the court dockets and trials. Mediation is an appealing alternative to litigation as it helps ease the flow of court cases. Mediation takes significantly less time because the process is less formal and more accommodating to the needs of the parties. The above reasons lead to a higher degree of compliance which leaves parties feeling happier and greatly improves the chances of preserving the relationships of the parties involved.
In relation to family law, mediation plays an important role. Unlike the court room, mediation allows the parties to be themselves and work out an agreement instead of having a decision imposed on them by a judge.
The legal aid, sentencing and punishment of offenders Act 2012 introduced reforms, that effectively removed legal aid for divorce cases. The intention was to get individuals to take up mediation instead of seeking a court hearing as it is cheaper and less adversarial. However, the result had the opposite effect. Family mediator Marc Lopatin’s freedom of information request found that there was a 47% drop in couples attending the mediation meetings that before the legal aid cuts were implemented.
Although mediation is very appealing for civil cases, in particular family cases, there are some potential issues that can appear. There is generally an assumption that all parties have equal knowledge and bargaining power, when in fact one party may be very passive and the opposing party might manipulate and/or exploit this more vulnerable party and force an unfair agreement[ ‘The English Legal System’ 7th Edition, Gary Slapper & David Kelly, 2016, Page 601]. Mediation Also, does not always result in a settlement agreement. Some parties might go through the mediation process only to find out that their case has to be settled in court. Opting for mediation, therefore, is risky, especially if a party has little funds. Further, if mediation fails, much of a party’s “ammunition” might have already been exposed to the opposing party, thereby becoming far less useful in the ensuing trial. Mediation (along with most forms of ADR,) lacks the protections guaranteed by the civil courts. Alos, if mediation fails to reach an agreement, it will take more time. The lack of formality in mediation could be a benefit, as mentioned above, or a detriment. Parties with different amounts of resources available, might result in an disproportionate settlement as the less-well positioned party is overwhelmed and unprotected. Also, this form of ADR is focused on the future, so some past actions/behaviours could be overlooked during the process. mediation relies on good faith, and any party can back out at any time they wish. Cases that are considered to be of public importance and are resolved using mediation are not publicised as mediation if private and confidential.
It is established in Dunnet in leicester Circuits Ltd v Coates Brothers plc (2003) that where an offer for ADR is turned down by the successful party, they wont be awarded their full costs. It is established in Hurst v Lemming (2002)[ ‘The English Legal System’ 7th Edition, Gary Slapper & David Kelly, 2016.] that it is possible to reject an offer of ADR, but the test is Objective, and difficult to keep up. Therefore it is right to assume that offering to solve a dispute using mediation before