Should Alternative Dispute Resolution be Made Compulsory?

Should Alternative fray Resolution be Made Compulsory?Introduction.It is a sad fact of life that disputes fag and do arise from even the most trivial incidents and activities. They be always totally unexpected and usually highly predictable.1 For a long time, people piddle been worried about civil litigation. It is costly, time consuming, worrying and takes a long time to decide.2 Alternative challenge Resolution (ADR) is a term which refers to various procedures developed in the United States over the last 15 years or so in an attempt to overcome some of the weaknesses in the litigation and arbitration processes.3This essay leave look at Alternative contest Resolution in England. I will start by looking at the ideal of Alternative dispute resolution. I will briefly examine Lord Phillips speech delivered in India on 29 March 2008. Finally, I will give my views on whether Alternative Dispute Resolution should be do absolute in England and the troubles that would be encoun tered if Alternative Dispute Resolution is made compulsory in England.Alternative Dispute ResolutionA focus on rights has played a signifi buttt part in the transformation of Western semipolitical culture from the harmony ideology of feudal societies in to 20th century participatory democracy. However, 30 years on from the birth of the civil rights movement in the United States, there argon those who now express scepticism over the achievements of a rights oriented public culture.4 As a consequence, some now purport a rethinking of rights ideology, as both a method of dispute resolution and a definition of social relations, and the development of alternative process for dealing with conflicts and claims.5 such(prenominal) strategies are generally described as offering alternatives, since adjudication according to rights remains the dinner gown approach to dispute resolution in the west.6In common rightfulness jurisdictions, conversation about alternatives to litigation began to take institutional shape from the early 1980s, in a range of disparate experimental procedures sharing the common stigmatize Alternative Dispute Resolution, with its universal acronym ADR.7 The relationship of this growing complex of practices to lawyer negotiations, litigation and adjudication is far from straight forward. Some of the innovations taking place are directed towards speedy settlement of disputes between litigants without the involvement of lawyers, others appear to be implicated in, and are indeed extensions of legal practice, while others appear as supplements to, or modifications of court process.8The English Legal System is based on the adversarial system of litigation. This means that both sides to a case separately prepare their respective submissions and consequently arrive at court and participate in a quasi-gladiatorial contest until the tribunal of fact (in civil trials this usually being a judge) pronounces the winner.9 In late times, there is now been an acceptance that alternatives to the adversarial system of justice may be appropriate due to the high cost involved in the adversarial system of justice. i of the easiest alternatives to implement is to encourage disputes to be respondd other than by recourse to litigation. This has led to the establishment of Alternative Dispute Resolution (ADR).10 Since 1990, many British lawyers, ready taken an active interest in ADR, as a means of avoiding the public and private expense and the private pain of litigation.11The increased importance of ADR mechanisms has been signalled in both economy and court procedures. For example the Commercial Court issued a practice statement in 1993, stating that it wished to encourage ADR, and followed this in 1996 with a further attention allowing judges to consider whether a case is suitable for ADR at its outset, and to invite the parties to attempt a neutral non-court settlement of their dispute.12 In cases in the Court of Appeal, the whelm of t he Rolls now writes to the parties, urging them to consider ADR and asking them for their reasons for declining to use it. Rule 26.4 of the Civil Procedure rules (CPR) 1998 enables judges, either on their own account or at the symmetry of both parties, to stop court proceedings where they consider the dispute to be best suited to solution by some alternative procedure, such as arbitration or mediation.13 at that place is no universally accepted definition of ADR. The phrase ADR encompasses a range of procedures other than litigation which are designed to resolve conflicts. ADR processes include negotiation, mediation, conciliation, expert determination, adjudication, and arbitration.14Alternative Dispute Resolution or ADR may be defined, as a range of procedures that serve as alternatives to litigation through courts for the resolution of disputes, generally involving the intercession and assistance of a neutral and impartial third party. In some definitions, and more commonly it excludes all forms of adjudication.15 The Department for extreme Affairs defines ADR as , The collective term for the ways that parties can settle civil disputes, with the help of an independent third party and without the need for a formal court hearing.16There are three principle forms of ADR. Arbitration, Mediation and Conciliation. Some commentators argue that ADR can be divided in to two classes, those being adjudicative and consensual.17 The former is called arbitration, and it is quite same to court proceedings and this has led critics to ask, if there is anything alternative about ADR.18 Four goals of ADR are To relieve court congestion, as tumesce as undue delay and cost to enhance community involvement in the dispute resolution process to facilitate access to justice and lastly to provide more effective dispute resolution.19Lord Phillip is a staunch supporter of Alternative Dispute Resolution. I believe that he wants ADR to be made compulsory in EnglandConclusion.Alt ernative Dispute Resolution no doubt has many advantages. There is a chance that you may quickly resolve your problem and you may be awarded compensation. The procedure is less formal court proceedings. In some cases, the decision may be binding on one of the parties, plainly not on the other party, thereby leaving one party free to pursue the matter through the court if he wishes. Alternative Dispute Resolution is usually much cheaper than going to court and the procedure is confidential.ADR will be difficult in disputes between more than two parties, where the parties have not already contracted for a consolidated arbitration and the parties will not agree to arbitration, going to court is potentially the only way of getting ignition interlock disputes resolved by the same tribunal.20A party that is proposing to enter a number of related contracts should particularly bear this situation at the drafting stage. There are two specific aspects to the matter. First, the related contr acts should provide for an identical scheme of dispute resolution otherwise that party may find itself involves mediation or arbitration or litigation depending on which other party is involved.21Secondly, the drafting must address the need for multi party proceedings, and establish a spinal column to back set of contractual obligations for this purpose. A difference in the powers at different levels will make the mufti-party proceeding very difficult to conduct.22 If these two aspects of the matter are not addressed, the parties will be better off, with litigation as the fall back method of dispute resolution.23Where a number of actions raise substantially similar issues, such that a decision in one of them will probably enable the parties in the others to compromise their dispute, litigation is likely to be preferable24.Where there is a difficult question of interpretation of common form contract, or of the application of a common form of contract to some event which affects a b ounteous number of similar contracts or the operation of a market, it may well be preferable to obtain an authoritative ruing of the courts on the point.25In numerous jurisdictions, legislation ensures that in the case of a consumer dispute, where the terms upon which the consumer purchased the goods or services includes an arbitration clause, the consumer has a choice of whether to take his dispute to arbitration or litigation.26BibliographyBevan, A.H (1992) Alternative Dispute Resolution, Sweet Maxwell, capital of the United KingdomBrown, H Marriott, A (1999) ADR Principles and Practice, Sweet Maxwell, capital of the United KingdomdAmbrumenil, P.L (1998) What is Dispute Resolution, LLP Referencing Publishing, LondonDarbyshire, P (1992) English Legal System, Seventh Edition, Sweet Maxwell, LondonElliot, C Quinn, F (2005) English Legal System, 6th Edition, Pearson, HarlowFiadjoe, A (2004) Alternative Dispute Resolution A developing world perspective, Cavendish, London.Frank, E (2003) How Arbitration Works, Sixth Edition, Bureau of National Affairs, Washington D.CFreeman, M (ed.) (2006) Alternative Dispute Resolution, Dartmouth Publishing, AldershotGillespie, A (2007) The English Legal System, Oxford University Press, OxfordLord, Phillips (2008) Alternative Dispute Resolution An English View Point, can be assessed at http//innertemplelibrary.wordpress.com/2008/04/04/alternative-dispute-resolution-an-english-viewpoint-judiciary-of-england-and-wales/MacFarlane, J, (ed.) (1997) Rethinking Disputes The Mediation Alternative, Cavendish, LondonPalmer, M Roberts, S (1998) Dispute Processes, ADR and the Primary Forms of Decision Making, Butterworths, LondonPetley, M (1992) Alternative Dispute Resolution An Introduction, College of Law, LondonSlapper, G Kelly, D (2003) The English Legal System, Cavendish, LondonTweeddale, A and Tweeddale, K (2005) Arbitration of Commercial Disputes, Oxford University Press, OxfordTackaberry, J Marriott, A (2003) Bernsteins Hand book of Arbitration and Dispute Resolution, Sweet Maxwell, London1Footnotes1 dAmbrumenil, (1998) p.52 Bevan (1992) p.23 Bevan, (ibid) p.24 MccFarlane, J (1997) p.15 MccFarlane, J (ibid) p.26 MccFarlane, J (ibid) p.27 Palmer, M Roberts, S (1998) p.28 Palmer, M Roberts, S (ibid) p.29 Gillespie, A (2007) p.46910 Gillespie, A (ibid) p.47011 Darbyshire, P (1992) p.1212 Slapper, G Kelly, D (2003) p.31413 Slapper, G Kelly, D (ibid) p.31414 Tweeddale, A Tweeddale, K (2005)15 Brown, H Marriott, A (1999) p.1216 citied in Gillespie, A (ibid) p.47017 Shipman, 2006 p.182 cited in Gillespie, A (ibid) p.47018 Boon and Levin, 1999, p.373 Gillespie, A (ibid) p.47019 Freeman, M (2006) p.9820 Tackaberry, J Marriott, A (2003)p.2221 Tackaberry, J Marriott, A (ibid)p.2322 Tackaberry, J Marriott, A (ibid)p.2323 Tackaberry, J Marriott, A (ibid)p.2324 Tackaberry, J Marriott, A (ibid)p.2325 Tackaberry, J Marriott, A (ibid)p.23-2426 Tackaberry, J Marriott, A (ibid)p.24