Are There Ways to Avoid Court

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Are there ways to avoid Court? Is it cheaper and Faster?

INTRODUCTION

A large percentage of civil cases avoid taking the road of litigation. This is because litigation tends to be costly in

time and money, the case is publicised, and the whole experience might be traumatic for the parties. As a resultAlternative Dispute esolution, otherwise known as AD or external dispute resolution in countries such as

Australia,resolves disputes without resorting to the courts.

There are different types of AD known as negotiation, mediation, conciliation, arbitration, and tribunals. Despitehistoric resistance to AD by many popular parties and their advocates, AD has gained widespread acceptance

amidst both the general public and the legal profession in recent years. To be more precise some courts now re!uire

parties to resort to AD of some type, usually mediation, before permitting the parties" cases to be tried. This is

evident by theEuropean Mediation Directive (2008) which expressly envisages the so#called $compulsory$mediation. This stresses that attendance is compulsory, not that settlement must be reached through mediation.

%. NEGOTIATION

The first type of AD which is also its most informal type is negotiation. &f you have a dispute with a party then it

could be resolved directly with the other party. The advantages of negotiations are that the process is private hence

no information is published, and secondly, it is the !uickest and cheapest way of settling a dispute. 'owever, thedisadvantages of negotiation arise when a case is not successfully resolved through negotiation because it then

proceeds to the (ourt which in turn means that solicitors are instructed thus costs increase and it takes much longer

time than if the case went initially to the (ourt. This happens because cases can drag on for ages only to be resolved

the day of the hearing.

2 !EDIATION

The second type of AD is mediation. This involves a neutral third party acting as a go between, to try and help

the parties to reach an agreement#compromise. )ediators can be experts but not necessarily have legal knowledge of

the sub*ect matter.

A. )ediators +rime Duty

The mediators prime duty is to discuss the matter with each party in separate rooms and consider if there is a

common ground between the parties. Then he will explore the position of each party carrying offers to and fromtherefore the mediator is not expected to provide his opinion to the parties.

. )ediation +rocess

The mediation process is informal, but can also become formal via the -ormalised ettlement (onference that

consists of a mini trial were each side to the dispute present their case and arguments to the panel. The panel consists

of an executive from each side and a neutral person. The two executives from the panel after hearing the case will

assess the positions of the two sides and endeavour to reach an agreement. &f the two executives cannot come to anagreement then the neutral party will act as a mediator. The (ourt takes into account the fact that there is an

agreement or not about the dispute.

'owever, normally a case does not take a long time to be resolved since the parties state the points on which there is

a disagreement. These mini trials are used in the /nited tates to settle commercial disputes. &n the /nited 0ingdomthough, commercial mediation is used through the (entre -or Dispute esolution, formed in %11%, which offers

mediation services. &ts members include top 2ondon law firms. usinesses that have used the (entre to resolve

dispute say that it has saved them thousands of pounds in courts costs. -or example, the cost of having a mediator is


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anything between %,333 to %,433 5nglish pounds in comparison to %33,333 to % million 5nglish pounds re!uired

follow the $(ourt"s road$.

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The advantages of having a mediator are important and should be scrutinised. -irstly, the decision does not have to

be legal which denotes that the compromise reached between the parties and as such the decision, may be based oncommercial commonsense and compromise.

econdly, the mediator makes it easier for businesses to carry on doing business with each other for the reason that a

mediator can provide advice on how the parties should conduct future business with each other. 6n the contrary, this

cannot be achieved in the courts, as the atmosphere is hostile and bitter.

&n addition, the mediation avoids the winner8looser result that occurs in the courts, as it is said that with mediation

everyone wins.

)oreover, it avoids the adversarial system used in the courts where each party presents their arguments. -inally, the

most significant gain is that in mediation the parties are in control as they can take the decision and not the mediator.

D. (67 6- )5D&AT&67

6n the other hand, the disadvantages of mediation are also worth consideration. To start with, there is no guarantee

that the dispute will be resolved. o &f the dispute is not resolved then the case may precede to (ourt therefore more

costs and delays arise as a result.

Additionally, the amounts paid in mediation settlement are lower than the amounts awarded by the courts.

)oreover, the parties to each side of the dispute pay for their own legal costs.

2astly, successful mediation re!uires a skilled mediator. &f the mediator does not have the re!uired skills then

mediation becomes a bullying exercise and as such the weaker party is forced to settle.

" CONCI#IATION

(onciliation is another type of AD. This is similar to mediation in that a neutral party helps to resolve the dispute

with the exception that in conciliation the conciliator plays a more active role. The conciliator is expected to suggestgrounds for compromise and to try and reach a settlement. The industrial disputes such as unfair dismissal,

redundancy disputes and so on. The Advisory (onciliation and Arbitration ervice 9A(A: can provide an impartial

opinion on the legal position. &f conciliation does not lead to a resolution it may be necessary to try to continue with

a court action.

A. 575-&T 6- (67(&2&AT&67

The advantages of conciliation are similar to the lines of the two ways mentioned above. -irstly, the decision doesnot have to be legal which means that the compromise reached between the parties and as such the decision may be

based on commercial commonsense and compromise.

econdly, the conciliator makes it easier for businesses to continue to transact with each other since conciliation can

provide advice on how the parties should conduct future business with each other.

)oreover, it avoids the adversarial system used in (ourt where each party presents its arguments fighting onfactual or legal issues. -urthermore, it is cheaper and !uicker than going to (ourt.


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. (67 6- (67(&2&AT&67

6n the other hand, the disadvantages of conciliation are the following.

-irst of all, there is no guarantee that the dispute will be resolved. &f the dispute is not resolved then the case may

proceed to (ourt therefore more costs and delays will be re!uired.

Additionally, the amounts paid in conciliation settlement are lower than the amounts awarded by the courts.

)oreover, in conciliation the parties are not in control. &t is the conciliator that has control, unlike mediation.

2astly, successful conciliation re!uires a skilled conciliator. &f the conciliator does not have the skills that arere!uired then the conciliation will fail thus the parties will go to court.

$ AR%RITRATION

A. ;hat is itueens ench Division precede, where the (laimant is claiming less than 4,333 5nglish pounds in damages.

The second meaning of the word arbitration occurs when the parties agree to submit their claims to the private

arbitration. This type of arbitration is relevant to alternative dispute resolution, as it is yet another way of resolving a

dispute without the need for a case to proceed in (ourt. +rivate Arbitration is now governed by theArbitration Act

1996andsection 1 of that Actstates that the aim of arbitration is to reach a fair resolution of disputes by an impartialtribunal, without delays or expense. The Act also states that the parties should be free to agree how their dispute

should be resolved.

;hen is an Arbitrator appointedueens ench Division only if the other party has broken the rules of natural *ustice.These are the audi alteram partem which means that the parties were not given the right to be heard. Also, if there is

a bias in the proceedings.

2astly, if the conclusion is so unreasonable that no other reasonable party or body would have reached it such as thecase of V *arns"e M*! E+ ,arte -oo. in %1EG. The two remedies given by *udicial review is in*unction anddeclaratory *udgement. Another way to control tribunals is the control by the council of Tribunals.

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The advantages of tribunals are of considerable importance. This is because they operate more !uickly than the

courts. A case that goes to the tribunal is dealt within a day. 'owever, there is evidence which supports the view that

delays take place sometimes. This is evident in the case of A"ison -a"ford.


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econdly, tribunals are cheaper than going to (ourt so applicants are encouraged to deal with cases by themselves

and not be represented by lawyers.

&t must be highlighted that applicants who do not have legal representation have less chance of winning than those

who are legally represented which is 1H according to statistics made in early %113s where as those without lawyers

had BH success rate. Thirdly, tribunals operate in a specialised field, it can build up an expertise in that area which

no (ourt could hope to achieve. &n addition, tribunals are more flexible than the courts as they do not have to follow*udicial precedent. )oreover, they operate less formally than the court and most cases are heard in private. -inally,

due to the presence of lay persons it denotes that there will be common sense in the proceedings.

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The disadvantages of tribunals are the following. -irstly, the legal aid is not available. Therefore as statistics showthere is only BH of success rate for those who are not legally represented.

econdly, tribunals have a tendency to behave too much like the courts.

Thirdly, there may be in*ustice due to the fact that there are too many overlapping bodies. Although they are

supposed to be informal, some critics, including some of the reports of the (ouncil of Tribunals, say that they are

remote and inaccessible as courts, and ordinary people are unable to understand them. &n particular, the use of anadversarial rather than in!uisitorial approach, may lead to unfairness.

Additionally, because responsibility is taken away from those who should have possessed it 9the *udges: and placed

into the hands of less experienced amateurs, there could be risks involved and in extreme cases it could be

dangerous.

-inally, it is not sure whether you have the right to appeal. This is because the right to appeal in some tribunals is

permitted but it is also limited in other Tribunals one of which is &ndustrial Tribunals.

CONC#U'ION

The term Alternative Dispute esolution refers generally to all the alternatives to litigation that have been discussednamely Arbitration, (onciliation, )ediation, 7egotiation, and Tribunals. The pros of using AD on the whole are

that it is faster, cheaper, and less stressful than going to (ourt. 6n the contrary, the cons of using AD are that the

individuals involved in AD do not always possess relative skill and expertise that a (ourt does in order to helpthem resolve their differences which naturally leads to increasing costs and delays. 7evertheless, the use of AD is

growing and the references to the ;oolf eport, the +ractise Direction of %114 and more recently the 5uropean

)ediation Directive in B33 and so on are stressing the increasing importance of AD in our days.

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Are There Ways to Avoid Court