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7/8/2011

Table of Contents
Introduction ....................................................................................................... 3 The court system ............................................................................................ 3 ADR ................................................................................................................. 4 Problems with the court system ........................................................................ 5 Importance of ADR in place of litigation ............................................................ 6 Types of ADR ...................................................................................................... 7 1. Mediation................................................................................................... 9 2. Arbitration ................................................................................................ 10 3. Conciliation/Negotiation ........................................................................... 11 4. Adjudication .............................................................................................. 11 Comments and proposal for development of ADR ........................................... 12 Conclusion ....................................................................................................... 13 Bibliography ..................................................................................................... 14

Introduction
The court system
A governmental body that adjudicates legal disputes by interpreting and applying the law to specific cases. ( Wiley Publishing, Inc., 2010). There are many divisions of courts. The more serious criminal cases are tried in the crown court in front of a judge and jury. The judge presides over the trial process by attempting to ensure clarity and fairness and the jury decides the facts. In less serious criminal cases the case is sent for summary trial in one of over 400 magistrates courts. A summary trial means there is no committal and no jury. The trial is before a bench of magistrates. (the court system, 1998). In civil cases, the litigation is commenced by a plaintiff against a defendant mostly about land disputes, torts or contracts. The choice of court depends in most cases on the value of the claim. Claims of lesser value will start in a County Court. More substantial civil claims are heard in the high court. The high court is organised according to case type into Divisions. A Family Division deals with divorce and child welfare matters and also the administration of wills. a Chancery Division considers complex matters such as disputes about wills, settlements and trusts, bankruptcy, land law, intellectual property (copyright and patents) and corporate laws. The Queens Bench Division deals with the remaining business - disputes about contracts or torts or land. (the court system, 1998) Up to Court of Appeal level, each judge follows the decisions of all the higher courts above it but need not follow the views of other judges in the same court or a lower court. The Court of Appeal is normally bound by its own previous decisions in civil cases as well as those of the House of Lords. The Court of Appeal can depart from its own decisions in civil cases in the circumstances laid down in a case called Young v Bristol Aeroplane co.(1944). This says it can depart from its earlier own decision if (1) made in error (2) if there are two conflicting earlier decisions, the Court can choose one and override the other (3) where a decision conflicts with a later decision of the House of Lords. The Criminal Division of the Court of Appeal is not bound by its previous decisions - it is considered to be more important to be just
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to the individual than to provide certainty. The House of Lords is not bound by other courts (except the Court of Justice). But if it were bound by its own decisions, the system could become too rigid - the judges would have to await legislation through Parliament to correct any mistakes they made at that level. Rather than rely of the whims of the legislature, the House of Lords decided by a practice direction in 1966 that it was not to be bound by its own previous decisions, though it continues to recognise the value of certainty and so will depart from earlier decisions only in rare cases. The Court of Justice can overrule all other courts on matters of Community law. (the court system, 1998)

ADR
Is a process alternative to court action where the parties choose an independent third-party and agree on the timetable rather than having these imposed by someone else. It is a process of adjudication and parties may, or may not, agree at the outset to be bound by the decision. (Souper, 2008) ADR is basically the selection or design of a process which is best suited to the particular dispute and to the parties in dispute. The field of ADR therefore covers a broad range of mechanisms and processes designed to assist parties in resolving disputes creatively and effectively. In so far as this may involve the selection or design of mechanisms and processes other than formal litigation, these mechanisms and processes are not intended to supplant court adjudication, but rather to supplement it. (South African Law Commission, 2009)

Problems with the court system

There are many reasons why majority of people are seeking solving disputes outside of the court. The reasons are: inadequate amount of magistrates, shortage of court personnel such as bailiffs. Also Court administrative process does not lend itself to efficiency in the execution of the cases as outlined: When documents are filed at the Magistrates Court, the process of obtaining the Magistrates signature in order to allocate a date for the customers to appear takes far too long (normally 21 days). When a committal is filed, there is an overwhelming delay before the customer is served (internal examples date back to January 2003). After matters have been filed, there is too long a delay before they are expected to be heard (e.g. matters filed August 2005 to be heard in May 2006)When matters are filed with the Magistrates Court, there have been a number of instances when filed documents have gone missing and have resulted in the documents being re-done and re-filed. Sometimes businesses are given a date for a particular customers hearing, however, there are instances where on the date in question the customers name does not appear on the list. At this point the case is then adjourned to a later date. (civil court, 2009) Adjournment Period is too Long. The experience from the private sector indicates that adjournment period takes from 6 months to one year. This is further compounded by the fact that sometimes bailiffs do not serve the summons and if the company does not hire its own bailiff, the summons will not be served. There is also the feeling that some of the bailiffs may be personal friends of the person being served and this may be influencing their willingness to serve this summon. Sometimes the cases take so long to be filed that the offender may go out of business and the client then has very few alternate recourse to recover their goods. other problems with the court system are: Some matters have been adjourned too many times to another date, especially when the defendant has not been served. If summons have not been served due to address or any form of difficulties experience by bailiff, the Plaintiff must be informed of the withdrawal of the matter or Magistrate court should exercise its authority in forwarding this matter.
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Too many matters to be served for the day. Magistrates Court operates from (9 am 3 pm)

y y y

Some Court processing are too long, some matters take 45-120 minutes. Too many matters are being held the same day for the same Plaintiffs. Plaintiffs representing themselves do not have any form of priority in terms of matter being served by the magistrate. Accommodation of defendant & Plaintiff at an amicable time within the court scheduled list. A lawyer gets the magistrate priority over Plaintiffs who represents themselves, hence causing some of the Plaintiff matters to be adjourned to a following date.

There should be more than one day a week (Presently, every Friday in a week) for these matters, this cause a time elapse on some matters.{Time is money)

Some Child maintenance matters are being called, hence some delay and time has been wasted in the court going back & forth monitoring when the magistrate will be done.

y y y y y y y

The high costs involved The fact that courts are bind by decisions of previous cases The parties involved do not get their priorities recognized Lack of confidentiality as it is held publicly The proceedings are slow Requires lawyers which adds to the cost Ruins relationships as it does not give the parties the chance to come to terms with the matter at hand but instead puts them against each other.

Importance of ADR in place of litigation

There are many importance's of ADR in place of litigation. one of them being that it saves businesses a lot of time and money as it is seen from a survey that Businesses spend well over a third of their legal budget on litigation and every major dispute costs an average of 477 working days in management
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time. (Souper, 2008).ADR also has advantages over court action, where a party wants to:

y y y y y y y y

maintain a relationship with the other side once the dispute is over. To stay in control of the process and not hand it over to the judge. Be reassured about the costs or the delay in waiting for a trial. Keep the dispute and settlement to be confidential. Achieve an outcome that can be agreed which a judge could not award. Look for a settlement rather than take the risk of a judge finding against them. use a system that is voluntary and encourages early settlement of disputes use a system that is less stressful than going to Court and less formal than a trial by judge.

ADR also helps to relieve court congestion and enhance community involvement in the dispute resolution process

Types of ADR
ADR has been around for all time. The interesting thing is that smaller societies tend to work on a mutual concession and compromise basis to solve disputes. ADR appears to have existed in the oldest legal system that of Hammurabi in Babylon (now Iraq) certainly it was used in ancient Greece where the mediator was called proxenatas. Roman law recognised mediation where it was known by a variety of names. (Souper, 2008). The types of ADR are mediation, arbitration, conciliation and adjudication. Legal provisions supporting mediation or conciliation are usually found within national civil procedure codes, rules governing court procedures or national mediation or conciliation laws. An appropriate legal framework for these procedures embodies the following key principles:
y

voluntariness of the parties in determining the procedure, selecting the mediators, and final decision-making;

confidentiality of the procedure and its outcomes;

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y y

equality in the mediator's relation towards the parties; neutrality in the mediator's relation towards the subject matter of a dispute and the mediator's recommendations;

enforceability of settlement agreements. National legislation on conciliation and mediation is often guided by the UNCITRAL model law on international commercial conciliation which features the same core principles underlying the mediation or conciliation procedure. The initial success of mediation in Europe and the enthusiasm of numerous proponents about alternative dispute resolution led to the harmonization of mediation legislation in all European Union member states pursuant to the Directive on certain aspects of mediation in civil and commercial matters (2008/52/EC). Frequently, UNCITRAL Model Arbitration Law-based national laws govern not only international, but also domestic arbitrations. (investment climate, 2011) there are number of international conventions and legal instruments relevant to ADR. These include, in particular: The New York Convention (United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 10 June 1958), which ensures the recognition and enforcement of foreign arbitral awards, and is the most important international legal instrument relevant to arbitration. It is in force in all EU Member States. The 1968 Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters provides default jurisdictional rules for disputes, including those involving consumers. For example, the Convention generally gives consumers the right to bring suit in the Contracting State in which they are domiciled, and provides that this right may not be derogated from except under certain narrowly-defined conditions, such as by an agreement which is entered into after the dispute has arisen The Convention on the law applicable to contractual obligations (the Rome Convention of 19 June 1980) similarly provides default choice-of-law rules for contracts, including consumer contracts. The Convention generally provides for application of the law of the country of the
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consumers habitual residence (Article4), and also provides that the parties may generally not derogate from the mandatory rules of law of such country (Foerster, 2000)

1. Mediation
The most popular form of ADR is mediation. Mediation is a process of dispute resolution focused on effective communication and negotiation skills. The mediator acts as a facilitator assisting the parties in communicating and negotiating more effectively, thereby enhancing their ability to reach a settlement. It is not the mediator's role to adjudicate the issues in dispute and indeed the mediator has no authority to do so. Mediation is not a process to force compromise, although compromise is an element of the process. Each party's limitations are respected and a party is only expected to make a shift in its approach to the problem if it becomes convinced that it is reasonable to do so. Some of the most compelling benefits mediation offers include: it generally enjoys an 80%-85% success rate, thus its very effective ,The resolution is created by the parties; it works for them, it focuses on resolving the problem quickly, it is confidential and it is not expensive. Also it is Unstructured and informal ,Incorporates conciliation and facilitation ,mediator is neutral and it is Only binding if agreement is reached, which parties typically reduce to writing. The activity of mediation in itself appeared in very ancient times. The practice developed in ancient Greece then in roman civilization. The Romans called mediators by a variety of names, including internuncius, medium, intercessor, philantropus, and interpolator, Some cultures regarded the mediator as a sacred figure, worthy of particular respect; and the role partly overlapped with that of tribe chiefs. (Duhaime, 2009). Mediation couldnt exist without recognizing the decision-making capabilities of individuals that will be accompanied in order to get out of conflicts and difficult situations. The Law comes from the idea that individuals should be constrained and forced to behave well; while mediation emerges from the idea that individuals are able at any time to master them. The law system comes from the suspicion and mistrust of leaders towards individuals, while mediation develops trust. It's only during the
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twentieth century that first books about mediation have been published. More and more books are printed but sometimes are contradictory with each other (wikimediation, 2010). Example of cases involving mediation are such as family disputes over custody of a child and also in environmental and land uses such as Vernonia v. Columbia County - Airport industrial rezoning and development outside (Forester, 2010)

2. Arbitration
Arbitration is a procedure for the resolution of disputes on a private basis through the appointment of an arbitrator, an independent, neutral third person who hears and considers the merits of the dispute and renders a final and mostly binding decision., so it is not possible to go to court if you are unhappy with the decision. The process is similar to the litigation process as it involves adjudication, however, the parties choose their arbitrator and the manner in which the arbitration will proceed. For example, if the dispute is fairly straightforward and does not involve any factual questions, the parties may agree to waive a formal hearing and provide the arbitrator with written submissions and documentation only, called a documents only arbitration, whereas in other cases the parties may wish a full hearing. Therefore, the parties create their own adjudicatory forum which is tailor made to the particular needs of the parties and the nature of the dispute. (Duhaime, 2009). In arbitration Both parties must be willing to use the process, It is private, the decision is made by a third party, not the people involved though the parties decide the arrangements for each meeting and other inputs. Historians can claim with some certainty that arbitration was used as a form of dispute resolution long before the formal court system appeared. In fact, records from ancient Egypt, Greece and Rome all point to the popularity of arbitration as a method to resolve disputes. In ancient times, however, an arbitrator was usually a person known and trusted by both parties. The more intimately this individual was known, the more confidence claimants could have in his or her judgment. Today, we seem to favour the opposite extreme: the more impartial or disinterested the arbitrator is, the more he or she can be trusted as a qualified judge of the issue

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at hand. In modern law, arbitrators ideally have no relationship to either party concerned. (prigg, 2011) examples of cases of arbitration include security claims such as the enforceability of pre-dispute arbitration agreements in Shearson/American Express, Inc. v. McMahon, 482 U.S. 220 (1987), In McMahon, the Court held that a pre-dispute agreement to arbitrate a Securities and Exchange Act of 1934 violation between a customer and a brokerage firm was enforceable (Crochet, 2009) also cases like The Government of Sudan v The Sudan People's Liberation Movement

3. Conciliation/Negotiation
Conciliation involves an impartial third party helping the people in dispute to resolve their problem. The parties are free to agree to the resolution or not. In consumer disputes, conciliation is the first stage in the arbitration process and the conciliator is usually a member of the trade association. it is private and free of cost. The third party is basically there to encourage them to negotiate the terms and helps to improve communication and reduce hostilities (Advice Services Alliance, 2011) Examples of conciliation are cases like that of ms Jane v credit card company in which the credit card company failed to send the statements in Braille as ms Jane was blind and thus was compensated with $600 (disability conciliation service, 2005)

4. Adjudication
Adjudication involves an independent third party - the adjudicator - considering the claims of both sides and making a decision. This is usually done on paper. Both sides send in written details of their argument, with copies of any letters, reports or other evidence. The adjudicator then makes a decision based on this information, and on what is generally considered to be good practice in the business concerned. The adjudicator is usually an expert in the subject matter in dispute. Adjudication is usually more informal than arbitration. . Adjudication decisions are usually binding on both parties by prior agreement and it is also free to utilise. (Advice Services Alliance, 2011). Three types of disputes are resolved through adjudication which are
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disputes between private parties, such as individuals or corporations; disputes between private parties and public officials; and disputes between public officials or public bodies. (law brain, 2010).Examples of cases involved are basic disputes between two parties such as Cubitt Building and Interiors Limited -v- Richardson Roofing (Industrial) Limited (9 May 2008)

Comments and proposal for development of ADR

In every state a State ADR Authority should be constituted to give effect to the policies and directions of the Central Authority. State ADR Authority should be headed by the Chief Justice of the State High Court or the Advocate- General of the state or any such eminent person in the field of law. District ADR Authority then needs to be constituted in every district to implement ADR programmes and schemes in the district. The District Judge of the district or a similar person of repute in the legal field be its ex-officio Chairman. To successfully bring ADR to the common man while still reducing the backlog of cases piled up in files in the back offices of courts, radical steps need to be taken. It is important that the legislature introduce certain provisions which discourage initiation of litigation in cases where out of court settlements can easily be worked out. Also, The Internet, which has initially been the cause of increase in disputes, has itself provided a new means to resolve not only the disputes generated due to its advent but also other disputes wherein it has had no role to play. It does through Online Dispute Resolution. It is nothing but the employing of available communication technology to deliver ADR services i.e., it is the implementation of ADR in an online environment. In todays day and age, ODR can be a very effective way to provide ADR solutions to a host of

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people in a large area without incurring traditional costs involved in setting up a state run authority otherwise. Also, the easy access it provides to the common man to reach out for solutions through ADR will truly be an ingenious and progressive step forward in bringing justice closer to the common man. also integrating ADR into the educational systems worldwide would help develop awareness of ADR. (Singh, 2009)

Conclusion
Alternate dispute resolution involves methods of resolving disputes other than through litigation. The methods are in addition to litigation and are by no means intended to replace litigation. Even the strongest proponents of ADR agree that certain matters must be resolved through the courts. However, there are other methods for resolving dispute which offer many advantages over the adversarial route, which should be explored before litigation is commenced or proceeds too far as it would save time and cost and give more efficient results.

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Bibliography
Wiley Publishing, Inc. (2010). court law. Retrieved from your dictionary. Advice Services Alliance. (2011). civil court. (2009). Crochet, G. R. (2009). disability conciliation service. (2005). Duhaime, L. (2009). Foerster, M. &. (2000). Forester, R. (2010). investment climate. (2011). law brain. (2010). prigg, a. (2011). Singh, S. (2009). Alternative Dispute . Souper, M. (2008). Alternatives to the courts. Retrieved from sixth form law. South African Law Commission. (2009). the court system. (1998). Retrieved from uk law online. wikimediation. (2010).

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