Alternatives to the courts - ADR introduction

Introduction
JA Cohen, ‘Chinese Mediation on the Eve of Modernisation’ 54 Cal Law Rev (1966)1201	A Chinese proverb states: “It is better to die of starvation than to become a thief; it is better to be vexed to death than to bring a lawsuit”. In the People's Republic of China arbitration has always been popular in the People’s Republic of China (PRC), fitting as it does with Confucian values and in particular with the belief that a formal dispute breaches the fundamental principle of business arrangements – that both parties should find a benefit. Arbitration is found more useful when the court system is inconsistent and difficult to navigate.
The need for alternative dispute resolution (ADR)	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 time. These are some of the findings from a survey of business disputes, conducted jointly with the Centre for Effective Dispute Resolution (CEDR) and solicitors CMS Cameron McKenna.
The court system is under pressure	The public are much more likely to seek a legal remedy when they have a grievance, they are more litigious. People from all walks of life keen to enforce their rights; students are taking legal action for poor teaching and the state, be it hospitals the police or government are frequent targets from many groups and individuals. ADR has long been a more appropriate form of dispute resolution and it has been encouraged more vigorously since the Woolf Reforms.
Some reasons why ADR is preferred to court action	ADR has advantages over court action, where a party wants to: 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. to continue to be neighbours or businesses who deal in the same local area or type of work. unbiased use a system that is voluntary use a system that encourages early settlement of disputes use a system that is less stressful than going to Court use a system that is less formal than a trial by judge.
Defining ADR
Definition of ADR	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.
Lord Justice Dyson in Halsey v Milton Keynes General NHS Trust [2004] CA	"The term 'alternative dispute resolution' is defined in the Glossary to the CPR as a 'collective description of methods of resolving disputes otherwise than through the normal trial process.' In practice, however, references to ADR are usually understood as being references to some form of mediation by a third party"
Other definitions of ADR	Alternative dispute resolution (ADR) is a term for describing the processes of resolving disputes in place of litigation and includes mediation, conciliation, expert determination, and early neutral evaluation.
*Lord Woolf, in his "Access to Justice", Interim Report, June 1995, says:*	"In recent years there has been, both in this country and overseas, a growth in alternative dispute resolution (ADR) and an increasing recognition of its contribution to the fair, appropriate and effective resolution of civil disputes ... litigation is not the only means of achieving this aim, and may not in all cases be the best"
Distinguishing feature of arbitration	Conciliation, mediation and arbitration are methods of resolving disputes. Generally, arbitration is distinguished by the fact that the arbitration decides the dispute, whereas conciliation and mediation only aim to assist the parties to reach a settlement of the dispute.
ADR and the courts
Minimum intervention by the courts	In Lesotho Highlands Development Authority-v- Impregilo SpA and Others [2005] UKHL their Lordships refused to disturb the award made by a Tribunal. They upheld the principle – of “great importance” - of minimal intervention in arbitration proceedings.
History 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 proxenetas. Roman law recognised mediation where it was known by a variety of names. As society and individual problems become more complex, the legal formality of the court becomes more important. "Arbitration International" has offered ADR services since 1892. Note: The importance of ADR to the English Legal System can be defined by the Woolf reforms and the Access to Justice Act 1999, and certainly by the overriding objective contained in the Civil Procedure Rules 1999.
ADR in place of court action - the Civil Procedure Rules	ADR is a suitable alternative to litigation for many disputes. The use of ADR in place of litigation is promoted by the Civil Procedure Rules, the courts, and the government. The Civil Procedure Rules - Rule 1(4) (2) (e) - contains a procedural code with the overriding objective of enabling the court to deal with cases justly. The court must further the overriding objective by actively managing cases, and this includes encouraging the parties to use an ADR procedure if the court considers that appropriate, and facilitating the use of such a procedure. Under the 1999 Civil Procedure Rules a judge can stay (stop) cases so the parties can try arbitration or other mediation methods. Rule 24(1) permits the court to adjourn proceedings "while the parties in dispute try to settle the case by alternative dispute resolution". The practice direction for pre-action protocols has been amended from 6th April 2006 to reinforce the principle that parties must think about ADR before taking a case to court. Failure by the parties to do so may place the party who refuses to consider ADR at risk of adverse consequences in costs.
Reduction in the number of trial cases	Some types of cases have fallen considerably, for example trials for defamation have fallen from 96 in 2000 to 66 in 2005.
ADR in The Commercial Court	The Commercial Court encourages the use of ADR in appropriate cases, including mediation, conciliation and (non-binding and without prejudice) early neutral evaluation by a Commercial Court judge.
ADR providers
Lord Woolf and CEDR	Lord Woolf – the former Lord Chief Justice - is a special advisor at the Centre for Effective Dispute Resolution (CEDR) on the panel of the most senior dispute resolution experts.
Ministry of Justice (MoJ) launched the National Mediation Helpline in 2004	The MoJ in conjunction with the Civil Mediation Council, provides a service which puts parties in contact with available mediators, from a range of service providers. CEDR has contributed to the development and implementation of the service and is one of the recommended mediation providers.
Proportionate Dispute Resolution	Proportionate Dispute Resolution is part of the government 5 year plan to remove many more disputes from the court system. Full details can be found on the MoJ website here.
Government, and Lord Chancellor's commitment to ADR	The government is committed to settling legal disputes by ADR methods whenever the other party agrees to it. The Lord Chancellor has said that there are often ‘alternative ways of settling the issues at stake which are simpler, cheaper, quicker and less stressful to all concerned than an adversarial court case. Alternative dispute resolution techniques have evolved as an attractive alternative to formal judicial proceedings. They are a valuable way to access justice — providing services and remedies and costs which are proportionate to the issues at stake’ Lord Chancellor’s Department Press Notice 117/01 *Government Pledges to Settle Legal Disputes out of Court* (23 March 2001). The savings in the Government's legal costs in 2004 are estimated to be £14.6 million, an increase of 128% on 2003. MoJ report here
ADR web sites	Civil Justice site with growing content, contains full details of relevant cases, here A very informative website "ADR Now" can be found here
Forms of ADR
Alternative Dispute Resolution (ADR) includes Negotiation Early Neutral Evaluation (ENE) Arbitration Mediation and Conciliation Small Claims Ombudsmen Tribunals are also an alternative to courts and are treated as a separate category
Complexity	ADR has become a "growth industry" and is a highly diverse subject with different forms of ADR for, seemingly, the whole range of legal disputes. Among the lesser forms of ADR are Adjudication (non-binding interim expert arbitration) Early neutral evaluation (opinion on merits of a claim) Expert determination (binding decision by expert in the field) Med-arb (a combination of mediation and arbitration) Med-rec (mediation with recommendations) There is some interesting research here.
Expert determination	Expert determination requires an independent expert in the subject of the disagreement to decide the case. The expert is chosen jointly by the parties and his decision is binding. Early neutral evaluation requires a neutral professional to give an appraisal of the merits of the case. The appraisal is non-binding.
Other ADR information
State funding	Legal Aid is available for some forms of ADR but never for Small Claims.
Heilbron Report 1993	The Heilbron/Hodge report (chaired by Judge Heilbron) concentrated on "key aspects for reform". In doing so, it demonstrated a consensus among the barrister and solicitors litigation was in urgent need of reform. It accepted a need for a change of culture and a radical reappraisal of the approach to litigation by all those who participate in legal proceedings.
Relevant cases
Full cases available here	Cowl v Plymouth City Council [2001] Cable & Wireless Plc v IBM UK Ltd [2002] Dunnett v Railtrack Plc [2002] Hurst v Leeming [2003] Halsey v Milton Keynes General NHS Trust; Steel v Joy and Halliday [2004]
Daniel Atkinson (adjudicator)	"Claims are essentially statements of entitlement, whereas a dispute often arises because of technical or legal uncertainty."