Efficient Dispute Resolution

When Mr. Chief Justice Warren Burger made the statement that the notion that people want formal settings of a courtroom to resolve their disputes is not correct; he meant that what people with legal troubles or grievances want, is an efficient, inexpensive, and quicker system than the one provided by civil justice system, within which they could get justice (Welsh, 2001). I agree with the statement made by Justice Burger that people with legal problems only want relief as quickly and inexpensively as possible, perhaps even avoiding the formal court system. There is significant development in alternative methods of dispute resolution, due to which people now have options for grievance redressal other than the ones traditionally offered in a formal civil justice system. These options are preferable to a significant portion of people because they offer redressal of grievances in a system that is not beset by slowness, expense and inefficiency. This does not change the role of the litigants within the system, nor does this affect the quality of outcomes for the litigants; but it provides options to litigants that may lead them to a quicker redressal of their grievance or resolution of their dispute.

Simply put, alternative dispute resolution method is defined as consisting of all legally permitted methods and processes of dispute resolution other than litigation (Ware, 2007). In general, these processes may be of different kinds, such as, facilitative, advisory, or arbitration (Ware, 2007). Mediation is facilitative, and conciliation is advisory, while arbitration is adjudicatory. Negotiation as a method is involved to some extent in all processes of dispute resolution.

Arbitration provides a method of resolution that is akin to court adjudication, in that it is a system which has an arbiter decide the matter with a binding award, just like a judgment of the court; but without the time consuming, and expensive process of an actual adjudication process. Thus, arbitration has come to be recognised as an important devise for resolution of disputes, which combines some attributes of litigation without having the drawbacks of litigation, specifically, expense, delay in justice, and complexity of procedure (Stipanowich, 2010). It may also be noted that arbitration has come to be useful not only on ‘minor’ matters of dispute, but is a favoured process for resolution of disputes in commercial contexts.

The benefit of arbitration is that it provides flexibility in form and procedure. For instance, the parties to the dispute have the flexibility to decide (through agreement) on many aspects of the arbitration process, including the appointment of arbitrators. Moreover, parties can also choose to agree on other aspects of arbitration process, which are aimed at expediting the process of arbitration. This compares favourably from the perspective of the litigant to the litigation process, which is highly formal as courts are bound by the rules of civil procedure (Stern & Zarkin, 2015). Civil procedure rules are strict and rigid in form and relate to all aspects of civil litigation, such as, actionable nature of the issue, right to reply and procedure to be followed. Some of these very rules are responsible for the delay and expense involved in litigation (Dyson, 2015).

On the other hand, arbitration processes have been evolved to mitigate delay and expense. An example can be seen in the UNCITRAL Model Law on International Commercial Arbitration 1985, Article 4, which makes provisions to avoid delay, such as, by considering a waiver of right to object to arbitral proceedings if unreasonably delayed. Another example can be seen in the International Chamber of Commerce (ICC) Arbitration rules, Article 24, wherein time limits for arbitration can be fixed for the arbitral tribunal so that the award is made within a fixed period of time. These examples are reflective of the evolving nature of arbitration as a method suited to respond to the resolution of dispute in timely and less expensive manner (Alan & Martin, 2004, p. 244).

Mediation too has emerged as an important method of dispute resolution, so much so, that it is being increasingly included in statutory processes for dispute resolution. An example of such usage can be found in Section 10 of the Children and Families Act 2014, which provides for a compulsory mediation information and assessment meeting (MIAM) between a couple seeking legal separation, so that the individuals have an opportunity to make their child custody arrangements in an amicable manner. MIAM is now statutory requirement before making family application to the court. One of the benefits of the process of mediation is that this process is less confrontational as compared to litigation and in family settings, the lessening of conflict is useful so that the best interest of the child is ensured in a least conflict ridden environment (Roberts, 2014).

Mediation has emerged as a useful method in international family disputes because it offers parties control over the process (Roberts, 2014, p. 38). As mediation works on consent given voluntarily by the disputing parties, there is more likelihood of satisfaction with the outcomes as well as more likelihood of adherence (Roberts, 2014, p. 38). Mediation also makes for a more discrete and sensitive handling of family disputes as compared to litigation and is more suited to responding to the psychological and ethical concerns of family dispute resolution, which is not as well understood within the rigid formality of the civil justice system (Roberts, 2014).

Conciliation as a method of dispute resolution is based on the same cooperative system of resolving disputes that is seen in mediation and negotiation. As a system it involves a third party, just as mediation and arbitration, with a greater focus on finding a resolution to dispute which is agreeable to both parties. An example of the growing significance of conciliation method can be seen in the fact of the creation of the Advisory Conciliation and Arbitration Service (Acas), which provides a mechanism for workers to raise their disputes with their employers regarding their employment conditions (TUC, 2008). Acas has a statutory duty to offer conciliation to the parties and this relates to complaints that have been made to an employment tribunal as well as those that have not yet reached the tribunal (TUC, 2008). Acas has been successful in bringing down the potential employment tribunal workload by 73 percent in 2005-06 and in the same period, Acas helped settle 48 percent of the disputes (Gibbons, 2007 , p. 20). This is an important evidence that supports the utility of conciliation services to provide quick and effective means of resolution of disputes, which can otherwise take months or even years to conclude in a traditional formal court set-up. It may also be noted, with respect to Acas, that had the cases it helped settle moved to employment tribunals, these would have been more expensive for the employees, as tribunals claims are costly for both parties, employees as well as employers (Gibbons, 2007 ).

One of the important reflections on the inadequacy of the civil justice system in the 20th century, has come in the Woolf report, wherein it was noted:

“The defects I identified in our present system were that it is too expensive in that the costs often exceed the value of the claim; too slow in bringing cases to a conclusion and too unequal: there is a lack of equality between the powerful, wealthy litigant and the under-resourced litigant” (Woolf, 1996, p. 2).

The Woolf report ushered in significant changes in the civil justice system of England and Wales with the objective of reforming the system so that it would be less expensive, less time-consuming, and more equitable for all kinds of litigants. It is interesting that one of the key changes brought in by Woolf reforms, was the inclusion of alternative methods in the litigation process. The pre-action protocol that is now a part of civil litigation gives parties time to find a way for cooperating with each other and even encourages parties to try to incorporate alternative dispute resolution methods for finding a resolution to their dispute (Peysner & Seneviratne, 2006). It may be noted that the Civil Procedure Rules, Rule 26.4 specifically provides that the court shall encourage the use of ADR at case management conferences and pre-trial reviews.

To conclude this essay, it can be reiterated that litigants are no longer seeking resolution of disputes in the formal settings of a courtroom. It is not, as Justice Burger noted, the black robed judges or the formal environs of the courts that give litigants hope for justice. Litigants today are looking for ways and means for resolving their disputes in less expensive, time consuming and rigid environments. There are other options in alternative methods of dispute resolution, which can provide a quicker and less expensive solution to most disputes, domestic or international, commercial or private. Therefore, it is fair to say that Justice Burger was right in his assessment and the growing evidence of statutory provisions that are made to encourage litigants to opt for less confrontational and cooperative systems of dispute resolution, only provide more evidence to support this thesis.

Bibliography

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