The costs of litigation and early settled cases in the civil dispute have indeed occurred because those alternative methods of dispute resolution have a more efficient and easy going results of solving disputes as well as costs due to parties reaching an agreement before going to court The civil Justice system involved reforms such as case management pre action protocols and ADR which were created by Lord Woolf in 1999 which aims to reduce the number of cases getting to court This was due to a number of issues within the previous system for expensive and slow process of concluding cases when Lord Woolf created his interim report in 1995 he emphasised the fact that courts didn t exercise a satisfactory amount of control over cases in particular there is no clear judicial responsibility for managing individual cases or for the overall administration of the civil courts In July 1996 Woolf set out his main objectives which to encourage parties to explore alternatives to court resolution of disputes and saving the courts time and affordable litigation as the first aim introduced was the pre action protocols to make parties to try to settle the dispute before going to court and avoid unnecessary costs of proceedings However in very urgent cases these protocols are not very appropriate
For example where a claim should be made instantly in cases such as the claimant s removal from the UK or a local housing authority failing to find a place for a homeless claimant ADR has played a massive role in solving Civil disputes in 1998 a research was carried out into Mediation Scheme by Hazel Genn its main goal was to promote instant dispute settlement and reducing the legal costs by an easy process that parties might prefer to court proceedings it was found that mediation actually was able to support and expedite settlements as a result 62 of mediated cases truly settled However there was no clear evidence demonstrating that Mediation saved costs ADR tells the court to encourage the parties to litigation by using those alternative methods which means that even Judicial review proceedings should not allow to go ahead if issues could be resolved by ADR R Cowl and Others v Plymouth City Council In response Lord Woolf himself commented on this case that it may be appropriate that the court holds a hearing in which the parties would have to explain the steps taken to resolve the dispute without the court s association As a matter of fact this firstly reflects the precise manner in which the courts are decoding in relation to ADR But secondly it also suggests that how the litigants are unwillingly refusing or adopting early to methods of ADR So we can see there is a lack of trust in ADR due to litigants might be relying on pursuing other methods
Furthermore this is not a very fundamental issue because its potential benefits can be seen as people start to get used to it The parties may believe that appearance in courts will result in a fair or a conclusion to the dispute But this could also be based on what ADR can essentially offer by the fact that the court remains the ultimate arbiter where in the matter where acceptable conclusion can t be reached by methods of ADR However those who refuse to go through methods of ADR and instead pursue a court hearing will be penalised An example of this is demonstrated in the case of Dennett v Railtrack plc where the court actually penalised the parties due to failure of using ADR In response to this Brooke J said that It is hoped that publicity will draw the attention of lawyers to their duties to further the overriding objective and to the possibility that if they turn down out of hand the chance of alternative dispute resolution when suggested by the court as happened on this occasion they may have to face uncomfortable cost consequences despite this strict regulation by the court there is still apparently people who would rather appear in courts Once again this suggests the lack of knowledge and trust in using methods of ADR But then again some cases might not be suitable for ADR such as those requiring interpretation of law or injunction cases Although there have been cost orders against parties who subjectively refused to mediate In this case this increases the costs even higher as mediation is not very fitting for cases involving personal injury However in the case of Halsey V Milton Keynes NHS
Trust it raised the question whether or not when is it reasonable to refuse Mediation The legal principle of this is that courts don t have the power to force parties to try ADR It could also be argued that there is no cost reduction in cases that don't settle according to professor Michael Zender who was one of the major critics which he also said costs may increase due to protocols and tight court timetables However there is not convincing evidence to back up this point In conclusion The Reforms were supported by both legal profession and Judiciary Encouraging early settlement and avoiding litigation is a massive benefit to litigants who rather not go through long procedures The main objective of the reforms was to reduce costs and delay however there are still criticism and debates about the reduction of costs Hazel Genn Report As well as debates such as Will they actually reduce costs Additionally delay in litigation might cause distress to weaker parties which might convince them in settling early However the reforms have been widely open to a bigger society and economically dealt with lower courts So they are not technically harmful either as there were positive outcomes with early settlements for minor cases
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