by Keith Hardie
With the aim of improving access to civil justice, an exhaustive inquiry is in progress by Lord Woolf, a judge of the highest court of appeal in the UK. The organisation and procedure of the civil courts in England and Wales are a subject of the inquiry. (Civil courts in Scotland operate independently of the rest of the UK). Also, recognising that court-based action is not always the most efficient, alternatives to litigation are under review.
Lord Woolf has issued an interim report that is now under discussion. He suggests a system that makes the courts responsible for the management of each case. They must decide the procedure suitable and set realistic timetables. In reaching these decisions, the cost, time and means of the parties must be taken into account.
At present the parties to a court action, to a great extent, determine the issues to be tried. Under the adversarial system, proceedings are often lengthened and become unduly complex. Changes are envisaged that will enable the courts and the parties to identify and define the issues in dispute before a hearing.
A three-tier system is proposed in managing cases. One is for small claims up to £3,000 with a simplified procedure. For claims up to £10,000: a 'fast track' with a fixed timetable and set costs is envisaged. For the remaining cases there would be a new 'multi-track' with compulsory case-management conferences and pre-trial review.
An objective of pre-trial activity is to define issues and encourage a settlement before actual trial. Lawyers will be expected to estimate the probable amount of costs and avoid being unnecessarily combative. Where there is a satisfactory alternative to court action for resolving a dispute, the court should urge it to be used.
Already the Lord Chancellor, Lord Mackay, has taken steps to encourage alternative dispute resolution (ADR) by publishing a booklet entitled "Resolving Disputes Without Going to Court". In launching the guide, Member of Parliament Jonathan Evans said: "While we will always need the courts to resolve some disputes, I believe that it is important, wherever possible, to enable people to find alternatives to going to court."
Other ways of resolving disputes out of court are not new. Formal arbitration has existed since 1950. A framework of statute law principally in the Arbitration Acts 1950-1979 governs procedure. By contract or agreement any company in the United Kingdom may stipulate that a dispute shall be referred to arbitration.
The advantages of arbitration are to be found in privacy, reduced cost and flexibility. Where technical issues are involved, time may be saved by selecting an arbitrator who is an expert in the subject of dispute. An arbitrator's award can be registered and enforced in the same way as a judgment of the court.
In 1974 the Advisory, Conciliation and Arbitration Service (ACAS) was established by statute to provide 'an independent and impartial service to prevent and resolve disputes and to build harmonious relationships at work'. The service covers England, Wales and Scotland and a similar scheme exists in Northern Ireland. Many thousands of industrial disputes and individual complaints against employers have been settled by the service.
Over the past 10 years a variety of types of alternative dispute resolution has emerged. They include straightforward negotiation between the parties; mediation, and ombudsmen schemes - where independent investigators deal with complaints against public bodies or private sector services.
Mediation is probably the process furthest away from court- based litigation. Instead of setting one party to a dispute against the other, a neutral third party endeavours to bring them together and agree a solution.
Time and expense are saved and the tension and ill-will often created by an adversarial trial eliminated. For disputes affecting communities and neighbourhoods, Mediation UK a registered charity - has established a network of organisations and individuals interested in mediation. Commenting on their work, Lord Woolf said: "These have made a considerable contribution to the resolution of disputes, resulting in a significant saving to the court system."
The initiative in providing mediation services for disputes generally has also been taken by other private organisations. Professor John Baldwin, director of the Institute of Judicial Administration, Birmingham University, commented: "People want mediation. They want to participate actively in the settlement of disputes." This view is borne out by the increasing number of cases settled in this way.
The Centre for Dispute Resolution (CEDR) was founded in 1990 with the backing of the Confederation of British Industry. The centre deals mainly with commercial disputes both in Britain and internationally. According to Professor Karl Mackie, chief executive of CEDR "over 90% of CEDR mediations end in settlement during mediation with substantial savings in costs."
The Alternative Dispute Resolution Group (ADRG) was founded in 1989 and provides mediation services using trained lawyer mediators who conform to a code of conduct. ADRG also conducts training courses in dispute resolution skills suitable for professionals who negotiate on behalf of clients.
Recently the British Association of Lawyer Mediators (BALM) was formed with Lord Woolf as patron. Its members are drawn from the legal profession and standards are laid down for membership. Alastair Logan, the chairman, stresses the value of mediation in family matters, saying, "it also enables issues relating to the children to be looked at in the context of the family as a whole."
The need for ADR was emphasised by Lord Alexander, a lawyer and chairman of National Westminster Bank, when he said: "Lawyers and business have no option but to consider the wider use of ADR - their competitiveness could depend on it."