The Rise Of ADR Within The Civil Justice System

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The Rise Of ADR Within The Civil Justice System

Alternative Dispute Resolution is an all-encompassing umbrella term for the different techniques used to resolve conflict outside of court. The use of ADR has become increasingly popular over recent years and is helping to solve disputes in a more streamlined and accessible fashion, whilst freeing up the courts and the time of solicitors in the process.

The whole appeal of ADR is that those in dispute have other means of solving disputes which would otherwise end up in court. Court can be a stressful, expensive, and time-consuming experience, so if there are means by which to avoid this experience and any of the above, then why not explore and utilise them?

Let’s explore some of the most commonly used forms of ADR within the UK at the moment,

-Negotiation

Negotiation is likely to be the first form people take to resolve a dispute before seeking advice. It is an informal means of resolving a dispute; the two parties involved communicate directly with each other to try and reach an agreement. It can be conducted with or without a third party. If the parties chose to progress to more formal means of resolving a dispute, their representatives are likely to engage in some negotiation before reaching court.

-Mediation

Mediation is the most used and researched form of ADR. A voluntary process where a neutral third party works to bring disputing parties to a consensual settlement. Mediators can meet with both parties together, separately, and act as a go-between. They usually have no authority to impose a solution on the parties. Mediation focuses on problem-solving as opposed to legal rights and is generally said to be capable of producing ‘win/win’ situations, rather than the ‘win/lose' situations, as is characteristic of court adjudications.

-Arbitration

Arbitration operates like a privatised court system. An expert on the area of law in question makes a judgement at the end of a hearing and the parties agree that by going into arbitration they will be bound by the expert’s decision. A key feature of arbitration is that it is consensual and conciliatory, as parties can agree on the process and terms.

-Conciliation

Conciliation is a process where a conciliator attempts to assist parties to resolve disputes by improving communications and providing technical assistance. The conciliator is generally more interventionist than a mediator. ‘Early conciliation’ is offered by ACAS to parties who are thinking about going to an Employment Tribunal to try and resolve the dispute out with the tribunal process.

-Collaborative Law

Collaborative law is predominately used in divorce cases. The divorcing parties and their legal representation meet to attempt to negotiate a fair settlement without accessing the court. 

In theory, Collaborative Law offers the best of both the legal route and ADR as it combines both strong advocacy and collaborative negotiation.

-Early Neutral Evaluation

Early neutral evaluation (ENE) can be described as a mixture of mediation and nonbinding arbitration. It is a nonbinding form of ADR where a neutral third party provides the disputing parties with a confidential opinion on the strengths and weaknesses of each side of the argument, the likely outcome of the case, and the awards likely to be granted if it were to proceed to court or tribunal.

The impacts of the popularity of ADR on the courts and legal profession.

With the use of ADR becoming more popular over recent years, this has greatly increased as a means of resolving and arriving at a negotiated settlement that mutually benefits the parties involved.

The increasing popularity has many benefits, however, from the side of the legal profession, the increased popularity is also helping to free up the time of the courts, as using ADR to streamline the civil system will naturally free up more time in court for other cases to be heard. This in return allows the job of the solicitor to become more focused and honed onto the cases which really do require their professional and legal expertise, and could delegate cases that could be solved via a more informal method of justice. This is especially beneficial at present as there is a huge backlog within the courts due to Covid-19.

To summarise, ADR is on the rise, thus providing more jobs for those wanting to get into the field of dispute resolution, relieving the stress and unnecessary cases seen in court, and is a much more harmonious way of resolving disputes in general. We need to continue to embrace ADR and continue to make the civil court process even more efficient in the future.

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