Posts Tagged ‘dispute resolution’
Developing policy on Alternative Dispute Resolution
Many people acknowledge that if disputes can be resolved in ways that do not involve a hearing in court, this can be more effective and flexible than litigation. But use of alternative dispute resolution (ADR) has been constrained by the fact that, for it to take place, both parties need to accept that this would be the preferable way forward. There has been a reluctance to requires parties to use ADR.
In July 2021, the Civil Justice Council published an important report in which it argued that it would not be unlawful for the use of ADR to be made mandatory.
In August, 2021, the Ministry of Justice published a Call for Evidence seeking information about the use of ADR to resolve family, business and other civil disputes away from the courts. The paper makes clear that, in a post-Covid world, it is important to rethink some of the ways in which dispute resolution and how they should be changed to improve access to justice, reduce cost, and deliver fairer outcomes.
Experience from a number of other countries suggests that an element of compulsion in the use of ADR is important in achieving broader acceptance of the use of ADR.
It is unlikely that detailed policy initiatives will be announced for some time. But it seems to me that policy makers and the senior judiciary are working together to create a more postitive context within which ADR will become a central feature of the dispute resolution landscape.
The Civil Justice Council’s Report is at https://www.judiciary.uk/announcements/mandatory-alternative-dispute-resolution-is-lawful-and-should-be-encouraged/.
The Ministry of Justice’s Call for Evidence is at https://www.gov.uk/government/news/views-sought-on-dispute-resolution-vision. Submissions are sought by the end of October 2021.
Alternative Dispute Resolution for Consumers – new developments
The Department for Business Innovation and Skills has just published an important policy paper relating to alternative dispute resolution for consumers. It summarises changes in the law which come into effect in July 2015.
The paper notes that common forms of ADR are:
- mediation, where an independent third party helps the disputing parties to come to a mutually acceptable outcome
- arbitration, where an independent third party considers the facts and takes a decision that’s often binding on one or both parties.
In the UK, there are already several large and well-established ADR schemes in regulated sectors. These include:
- financial services
- energy
- telecoms
Outside the regulated sectors, many businesses are already members of voluntary ADR schemes.
Alternative Dispute Regulations 2015
Two sets of regulations, in March and June 2015, have been laid in Parliament to implement the European Directive on alternative dispute resolution (ADR) in the UK.
In outline, the regulations:
- place an information requirement on businesses selling to consumers informing them of an ADR service they may be able to use in the event of a dispute that cannot be resolved in-house (this obligation does not come into effect until October 2015)
- establish competent authorities to certify ADR schemes
- set the standards that ADR scheme applicants must meet in order to achieve certification.
In the regulated sectors, the regulators will act as the competent authority. These include
- Ofgem
- Financial Conduct Authority (FCA)
- Civil Aviation Authority (CAA)
In all other areas the Secretary of State will be the generic competent authority. He has appointed the Chartered Trading Standards Institute (CTSI) to carry out these functions on his behalf. The CTSI website sets out the bodies it has already certified as ADR providers; the information will be updated regularly as the implementation date gets closer.
While the regulations do not make participation in ADR schemes mandatory for traders, the regulations do require almost all businesses which sell directly to consumers to point the consumer to a certified ADR scheme – where they cannot resolve a dispute in-house – and declare whether or not they intend to use that scheme. The Government clearly hopes that traders will see that offering their customers access to a free dispute resolution service, rather than going to court, will be an attractive additional service they can offer.
The Policy Paper also flags up developments in On-line Dispute Resolution where new law will be introduced in January 2016. This is designed to enable people who have bought goods or services online from other countries in Europe will have access to an on-line dispute resolution service (very much on the lines that e-Bay already offers).
It can be observed that these developments are being driven by the Department for Business not the Ministry of Justice – but they are clearly in line with MoJ policy relating to proportionate dispute resolution.
To read the policy paper, go to https://www.gov.uk/government/publications/alternative-dispute-resolution-for-consumers/alternative-dispute-resolution-for-consumers
To read about the Chartered Trading Standards Institute go to http://www.tradingstandards.uk/home.cfm
To see the list of certified ADR providers go to http://www.tradingstandards.uk/advice/AlternativeDisputeResolution.cfm
Reforming the Civil Justice system
There have recently been two reports making proposals for reform of the civil justice system.
In the first, published in February 2015, a committee of the Civil Justice Council, chaired by Professor Richard Susskind made proposals for the development of online dispute resolution (ODR)
In summary the report calls for radical change in the way that the court system of England and Wales handles low value civil claims. We strongly advocate the introduction of online dispute resolution (ODR). The committee argued, in outline:
- For low value claims, we are concerned that our current court system is too costly, too slow, and
too complex, especially for litigants in person. - To overcome these problems, our main recommendation is that HM Courts & Tribunals Service
should establish a new, Internet-based court service, known as HM Online Court (HMOC). - On HMOC, members of the Judiciary would decide cases on an online basis, interacting
electronically with parties. Earlier resolution of disputes on HMOC would also be achieved –
through the work of individuals we call ‘facilitators’. - We predict two major benefits would flow from HMOC – an increase in access to justice (a
more affordable and user-friendly service) and substantial savings in the cost of the court system. - ODR is not science fiction. We present a series of case studies from around the world that clearly
demonstrate its potential. - We argue that to improve access to justice, it is vital not just to have better methods of resolving
disputes but also to have effective ways of avoiding and containing disputes. ODR can help here. - The technology underpinning ODR is evolving rapidly. We make a series of predictions about
the likely capabilities of later generations of ODR system. - Our Group would be pleased to work closely with HMCTS in a new phase of work, that should
focus on piloting the proposals in this report.
Their report is available at https://www.judiciary.gov.uk/reviews/online-dispute-resolution/odr-report-february-2015/
More recently JUSTICE has published an important report – Civil Justice in an Age of Austerity. A Committee, chaired by retired Court of Appeal Judge Sir Stanley Burnton, argues that the age of austerity should also be seen as ‘an age of opportunity’ to change the way the civil justice system operates.
It supports the proposals for ODR made by the Civil Justice Group (above) but goes further proposing that the courts take more responsibility for ‘triaging’ cases – with court officials playing a more proactive role in helping parties to disputes to resolve their problems themselves, leaving judges to deal with the most complex cases. It also argues for better information about legal rights and obligations.
The JUSTICE report is available at http://justice.org.uk/delivering-justice-in-an-age-of-austerity-report-launch/
Given the General Election, it will be some time before policy initiatives – if any – emerge from Government. But they show that there are influential figures in the legal system anxious to promote greater efficiency and a clearer user focus on the work of the courts.
Martin Partington: Introduction to the English Legal System 15th ed 2021
Oxford University Press Learning Link Resources
Martin Partington: Spotlight on the Justice System 