Litigation has its strengths and its weaknesses. For some cases, notably the criminal kind, justice can only be served through the courts. The court system therefore remains a fundamental and essential mechanism for a functional society. More generally, sovereign national courts have an important function, to serve as the ultimate decision making pillar within a democracy, particularly in the definitive interpretation of the law.
Consequently, it is incontestable that all citizens should have access to justice. But many disputes should not be litigated in court because they would be better suited to a wide range of alternative dispute resolution (ADR) procedures, which offer tangible and attractive benefits to users. Simply defined, ADR is an umbrella term for a range of processes and techniques which can be used in order to resolve or settle disputes outside the courts, usually with the assistance of a neutral third party. Praised for their expediency, ADR procedures such as arbitration and mediation are often less formal, cheaper and quicker than litigation. ADR is also confidential and offers a discreet and neutral setting for the resolution of disputes.
By contrast, critics continue to raise concerns over the failings of the litigation process because unlike ADR, it requires a lengthy and expensive commitment on behalf of parties. In addition, the outcome has only two options, ‘win’ or ‘lose’, and so relationships are rarely mended when judgements have been rendered.
Concerns have been heard and reform is on the cards. At the State Opening of Parliament earlier this year, the Queen announced a Prison and Courts Reform Bill for England and Wales, set to modernise the courts and embrace technology. The Intellectual Property (Unjustified Threats) Bill 2016-17 has also been published, in order to make it easier for companies to settle intellectual property disputes out of court. The proposal for an Online Court in particular, has been subject to extensive debate. Whilst some have argued that it will provide second-tier, second class justice, others have welcomed it as an innovative idea.
Subsequently, it is clear that ADR has a huge role to play in transforming the justice system in the UK. ADR should be viewed as a complimentary mechanism to the courts. And It should be used to settle disputes consensually or give decisions utilising the precedent based law handed down by the courts.
Despite the promise of this mutually beneficial relationship between the courts and ADR however, Conservative MP Alberto Costa, a former City Solicitor, noted last year that some of his previous colleagues were still not doing enough to encourage and promote ADR: “Looking back over the last 15 years we are not where ADR was promised to be. Most business people don’t know what ADR stands for,” said Mr Costa. “The majority of litigators, particularly in the City, are still not qualified [in ADR]. People are still wedded to the court system.”
The Chartered Institute of Arbitrators (CIArb) is taking active steps in order to change perceptions around ADR and enhance its role within the current framework. The Institute’s White Paper on ADR and Civil Justice Reform aims to be a valuable intervention in the policy formation process and to complement the review of the structure of the civil courts by the Judiciary of England and Wales, as well as the HM Courts and Tribunal Service (HMCTS) Reform Programme which is taking place in parallel.
Commenting on this, Chris Wilford, CIArb’s Head of Policy and Public Affairs, said:
“ADR can deliver further efficiencies within the civil courts system at a time of significant reform. Private ADR providers and the civil courts can work alongside each other to improve efficiency and access to justice for all concerned. As an integrated dispute track within the civil courts, private providers of ADR would complement and enhance the evolving structure of an Online Court by ensuring that specialist expertise could be brought within the system as and when required.”
Olivia Staines, PR and Communications, CIArb.
The Chartered Institute of Arbitrators (CIArb) is a leading professional membership organisation representing the interests of alternative dispute resolution (ADR) practitioners worldwide. With 14,000 members located in 133 countries, CIArb supports the global promotion, facilitation, and development of all forms of private dispute resolution.