Within the first part of my essay alternative dispute resolution (ADR) will be examined. I will have a critical look at the key types as well as their usefulness in fulfilling the objective of access to justice.
ADR represents a variety of processes all aiming to resolve disputes between potential litigants out of court. The parties agree on the type of process used and the independent third party. The main reason for adopting ADR, however, is dissatisfaction with litigation. Especially after the introduction of new issue fees that came into force on January 4th , many people are deterred from bringing their disputes to court by the financial barriers.
Colin Ettinger, President of the Association of Personal Injury Lawyers, describes the circumstances as unjust and unfair for litigants, especially those suffering from a personal injury, to fund - via fees and cost recovery - a civil court service which is meant to operate for the public good.'¹
Reducing both hearing related as well as case preparation costs, ADR is increasingly adopted to resolve civil disputes. But not only costs were a major problem of the court processes. My concern, however, is with access to justice, and hence with reductions in cost, delay and complexity. The argument for the universal application of the full, red-blooded' adversarial approach is appropriate only if questions of cost and time are put aside. The present system works well for lawyers and judges, but ordinary people are being kept out of litigation.' (Lord Woolf, Access to Justice (1999)).² As a result, Lord Woolf's suggestions were implemented by the Civil Procedure Rules 1999 and the Access to Justice Act 1999, obliging courts to encourage the use of ADR. Whereas the antagonistic and formal litigation processes constantly increase the existing conflict, ADR tries to encourage the communication and understanding between the parties by assisting them to find a solution. Moreover, it develops a wider range of...
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