Assess the Arguments for and Against Alternative Dispute Resolution in Civil Justice

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Assess the arguments for and against alternative dispute resolution in civil justice

Md. Akram Uddin

Contents 1. Introduction

2. Problem with court hearings:
* Time and money;
* The adversarial process;
* Inflexible;
* Technical cases;
* Publicity;
3. ADR mechanisms:
* Arbitration;
* Mediation;
* Conciliation;
* Med-Arb;
* Ombudsman ;

4. Advantage of ADR :
* Quick;
* Cheaper;
* Flexible ;
* Private;
* No appeal;
* Customer satisfaction;
5. Disadvantage of ADR:
* Dealing mechanism ;
* No multiple parties ;
* Imbalance of power;
* Lack of legal expertise;
* No system of precedent ;
* Enforcement;
* Low take-up rate

6. Courts approach to the use of ADR:
* The Civil Procedure Rules (CPR)1998;
* Dunnett v Railtrack;
* Leicester v Coates ;
* Kinstreet v Belmargo Corp ;

7. Wider use of ADR

8. Conclusion :

Alternative Dispute Resolution (ADR) is a term generally use to refer to informal dispute resolution processes in which the parties meet with a professional third party who help them resolve their dispute in a way that is less formal and often more consensual than is done in the courts. While the most common forms of ADR are mediation and arbitration, there are many forms: judicial settlement conferences, fact finding ,ombudsman, special masters ,etc. though often voluntary, ADR if sometimes mandated by the courts, which require that disputes try mediation before they take their case to court. However, using the courts to resolve dispute can prove costly, in terms of both money and time, it can also be traumatic for the individuals involved in the litigations and in some instances it may not lead to the most satisfactory outcome .A trial necessarily involves a winner and a loser and the adversarial procedure combined with the often aggressive atmosphere of court proceedings divides the parties, making them end up enemies even where they did not start out that way. Where a technical issue is involved in the dispute, such as – the way in which a machine should be made or the details of a medical problem; this issues may not be readily understandable by an ordinary judge. An additional problem is that, court proceedings are usually open to the public and press. So, there is nothing to stop the details of the case being published. These alternative methods are referred as ADR which stands for alternative dispute resolution. This includes any method of resolving a dispute without resorting to use the courts. Such as, Arbitration, Early neutral evolution, Expert determination, Mediation, Conciliation, Med-Arb, Ombudsman. Arbitration is a procedure whereby both sides to a dispute agree to let a third part, the arbitrator, decide. In some instances, there may be a panel. The arbitrator may be a lawyer or may be an expert in the field of the dispute. He will make a decision according to the law. Arbitrator’s decision, known as an award; is legally binding and can be enforced through the courts. Mediation is a way of settling dispute in which a third party, known as a mediator, helps both ideas to come an agreement which each considers acceptable. Mediation can be ‘evaluative’ where the mediator gives an assessment of the legal strength of a case, or ‘facilitative’, where the mediator concentrates on assisting the parties to define the issues. When mediation is successful and an agreement is reached, it is written down and forms a legally binding contract unless the parties state otherwise. Conciliation is a procedure like mediation but where the third party, the conciliator, takes a more active role in bringing the two parties together and in suggesting possible solutions to help achieve an...
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