Efficient, Inexpensive, and Quick Methods for Conflict Resolution

PART B Question 2

The methods of alternative dispute resolution are aimed at providing methods of resolution for the disputing parties that are efficient, inexpensive, and quicker than the adjudication process under the civil justice system. Although these methods are not adversarial in the same sense as adjudication before courts, these methods also involve resolution of conflict. So much so, that it may be said that one wants peace, then they must be prepared for war, or in this case, conflict that has to be resolved through the civil justice system. and can use to These methods involve the parties in negotiating a resolution through their lawyers or themselves. Courts have also encouraged these methods as noted in one case where the court noted that they should provide as much encouragement to resolve their difficulties in the civilised and sensible way that is done in alternative dispute resolution methods (S v P (Settlement by Collaborative Law Process) [2008]).

Methods of alternative dispute resolution are characterised as all those legally permitted methods of dispute resolution other than litigation before the courts. Alternative dispute resolution methods can be facilitative, advisory, or adjudicatory; mediation is facilitative, and arbitration is adjudicatory. In the following sections, the methods of arbitration and mediation are reviewed for their ability to provide resolution to conflict and disputes between parties.

Arbitration as a method is the closest to litigation before the court, and shares certain common features with court adjudication. For this reason, arbitration is also known as an adjudicatory method. To explain this point further, arbitration involves an arbiter who like the court judge, has the power to decide the dispute by giving a binding award. In that respect, arbitral award is like a judgment of the court in that it is binding on the parties to the dispute. Unlike litigation however, arbitration is not as time consuming, expensive, complex in procedure, and public. These are the reasons for the growing appeal of the method of arbitration and why it has come to be recognised as an important device for resolution of disputes. Importantly, for corporate bodies and businesses, arbitration has emerged to become a favoured method for resolution of disputes because not only does it provide flexibility in form and procedure, it also is more private than the litigation method. Flexibility of procedure is applied to allow parties to agree on the different aspects of the arbitration process, such as appointment of arbitrators.

Coming back to the statement that if we want peace, we should be prepared for war, arbitration is an apt illustration for this statement because it provides the method which lawyers can advise the clients for settling a dispute that avoids the parties going to court.

The other method that can be used for the resolution of disputes is mediation. Mediation is a method that has emerged as an important method of dispute resolution and is now also being provide in statutory processes as reflected in Section 10 of the Children and Families Act 2014, which mandates mediation information and assessment meeting (MIAM) for a couple seeking legal separation. This means that where a child is also involved, there is a mandatory MIAM to provide a disputing couple with an opportunity for amicable child custody arrangements. What can be surmised from this is that there is increasing recognition of the utility of the method of mediation for resolving disputes which is reflected in statutory requirements in some cases.

The benefits of the process of mediation are as follows. First, the process or mediation is less confrontational as compared to litigation and even arbitration to an extent because the purpose of mediation is to attempt at a resolution of dispute as non-confrontationally as possible. Mediation begins with consent given voluntarily by the disputing parties that their dispute be resolved amicably through mediation. In certain kinds of disputes, family disputes, mediation offers a sensitive, amicable and private method for resolving the dispute. As compared to litigation, which is adversarial and confrontational in nature, mediation is aimed at arriving at consensus between the parties for the resolution of the disputes. It is not even like arbitration where a binding award is given in favour of one party which is akin to judgment of the court. In mediation, the mediator, who is an impartial third person, assists the disputing parties to find a solution to their dispute which is agreeable to both the parties.

To conclude, the methods of alternative settlement of disputes offer parties methods that they can use to resolve their disputes without having to go to the courts.

PART C Question 3

This essay critically discusses the statement that the current regulatory framework in the Legal Services Act 2007 is not designed from the perspective of consumers. This essay focusses on how the focus of this law is to regulate barristers and solicitors.

The purpose of the Legal Services Act 2007 is to regulate the legal services, including barristers and solicitors. The Act provides a regulatory framework under which lawyers and non-lawyers are able to form businesses together. As such the law was not enacted from the perspective of the consumers, but it was enacted from the perspective of regulation of the business of legal services.

The scope of the law is related to the six ‘reserved legal activities’, which includes solicitors and barristers. Thus, under the Legal Services Act 2007, categorisation of reserved legal activities lead to creation of monopoly of the legal professions who can only provide these legal services to the public. The major scope of the law is to regulate these professions who are authorised to provide these services. The Act provides a regulatory framework in which lawyers can form joint businesses to provide legal services.

The Legal Services Act 2007 establishes a system within which legal services providers are regulated by an Approved Regulator. The Bar Council (Approved Regulator) and the Bar Standards Board have regulatory functions. The Legal Services Board (LSB) oversees the work of Approved Regulators. The other Approved Regulators include the Council for Licensed Conveyancers, the Institute of Legal Executives, the Chartered Institute of Patent Agents and the Institute of Trade Mark Attorneys.

The major task of the law is to provide for structures that can be used by the legal services providers as business structures only through which legal service providers are allowed to provide legal services. Self-employed barristers are prohibited from undertaking a number of types of work on behalf of clients (for example, paragraph 205 of the Bar’s Code of Conduct forbids self-employed barristers from supplying legal services to the public through partnerships, companies or other corporate bodies). Similar restrictions are not put on solicitors; there is therefore a different regulation for barristers prohibiting them to provide services through certain business arrangements on the ground that this is aimed to ensure access to justice (one of the eight objectives under the law), because if barristers are allowed to enter into partnerships. The argument is that barristers provide an important source of expertise as advocates and advisers, and when they are not in partnership with each other and have no financial interest, they can appear against their colleagues in chambers without any conflict of interest arising.

Although the Act does provide eight objectives, some of which are aimed at protecting the interests of the client/consumer, such as protecting and promoting the interests of consumers, the focus of the law is to use these principles as standards by which the barristers and solicitors and other legal professionals. The Act gives powers to the Law Society through the SRA to enable it to regulate arrangements which have at least one solicitor, registered European lawyer or approved body as a member. Apart from regulation of the business as discussed above, the Act also regulates professional behaviour and actions of barristers and solicitors. The professional conduct of barristers is regulated by the Code of Conduct. The professional conduct of solicitors is regulated by the Solicitors Regulation Authority (SRA) Code Handbook 2019.

After the passage of the Legal Services Act 2007, the legal profession is no longer self-regulated and regulation of professional conduct is done through the Legal Services Board and the professional Codes of conduct set by professional bodies, which are central to the regulation of professional behaviour of the solicitors and barristers. The Solicitors Regulation Authority (SRA) Code Handbook 2019 provides Principles that are relevant to this purpose.

To conclude, the Legal Services Act 2007 is more focussed on the regulation of the business and professional conduct and actions of the legal service providers like the solicitors and the barristers. The law is certainly not created with the perspective of the consumer although some of the principles are provided to protect the interest of the consumer. The wider perspective of the law is to regulate the legal profession so as to ensure the ethics of the professions that come within the scope of legal services as defined by the law.

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