Should Alternative Dispute Resolution be Made Compulsory?

Should Alternative Dispute Resolution be Made Compulsory? Introduction. It is a sad fact of life that disputes can and do arise from even the most trivial incidents and activities. They are always totally unexpected and usually highly predictable.[1] For a long time, people have been worried about civil litigation. It is costly, time consuming, worrying and takes a long time to decide.[2] Alternative Dispute Resolution (ADR) is a term which refers to various procedures developed in the United States over the last 15 years or so in an attempt to overcome some of the weaknesses in the litigation and arbitration processes.[3] This essay will look at Alternative Dispute Resolution in England. I will start by looking at the concept of Alternative dispute resolution. I will briefly examine Lord Phillip’s speech delivered in India on 29 March 2008. Finally, I will give my views on whether Alternative Dispute Resolution should be made compulsory in England and the problems that would be encountered if Alternative Dispute Resolution is made compulsory in England. Alternative Dispute Resolution A focus on rights has played a significant part in the transformation of Western political culture from the harmony ideology of feudal societies in to 20th century participatory democracy. However, 30 years on from the birth of the civil rights movement in the United States, there are those who now express scepticism over the achievements of a rights oriented public culture.[4] As a consequence, some now propose a rethinking of rights ideology, as both a method of dispute resolution and a definition of social relations, and the development of alternative process for dealing with conflicts and claims.[5] Such strategies are generally described as offering alternatives, since adjudication according to rights remains the formal approach to dispute resolution in the west.[6] In common law jurisdictions, conversation about alternatives to litigation began to take institutional shape from the early 1980’s, in a range of disparate experimental procedures sharing the common label ‘Alternative Dispute Resolution’, with its universal acronym ADR.[7] The relationship of this growing complex of practices to lawyer negotiations, litigation and adjudication is far from straight forward. Some of the innovations taking place are directed towards speedy settlement of disputes between litigants without the involvement of lawyers, others appear to be implicated in, and are indeed extensions of legal practice, while others appear as supplements to, or modifications of court process.[8] The English Legal System is based on the adversarial system of litigation. This means that both sides to a case separately prepare their respective submissions and then arrive at court and participate in a quasi-gladiatorial contest until the tribunal of fact (in civil trials this usually being a judge) pronounces the winner.[9] In recent times, there is now been an acceptance that alternatives to the adversarial system of justice may be appropriate due to the high cost involved in the adversarial system of justice. One of the easiest alternatives to implement is to encourage disputes to be resolved other than by recourse to litigation. This has led to the establishment of Alternative Dispute Resolution (ADR).[10] Since 1990, many British lawyers, have taken an active interest in ADR, as a means of avoiding the public and private expense and the private pain of litigation.[11] The increased importance of ADR mechanisms has been signalled in both legislation and court procedures. For example the Commercial Court issued a practice statement in 1993, stating that it wished to encourage ADR, and followed this in 1996 with a further direction allowing judges to consider whether a case is suitable for ADR at its outset, and to invite the parties to attempt a neutral non-court settlement of their dispute.[12] In cases in the Court of Appeal, the Master of the Rolls now writes to the parties, urging them to consider ADR and asking them for their reasons for declining to use it. Rule 26.4 of the Civil Procedure rules (CPR) 1998 enables judges, either on their own account or at the agreement of both parties, to stop court proceedings where they consider the dispute to be best suited to solution by some alternative procedure, such as arbitration or mediation.[13] There is no universally accepted definition of ADR. The phrase ADR encompasses a range of procedures other than litigation which are designed to resolve conflicts. ADR processes include negotiation, mediation, conciliation, expert determination, adjudication, and arbitration.[14] Alternative Dispute Resolution or ADR may be defined, ‘’as a range of procedures that serve as alternatives to litigation through courts for the resolution of disputes, generally involving the intercession and assistance of a neutral and impartial third party. In some definitions, and more commonly it excludes all forms of adjudication.[15] The Department for Constitutional Affairs defines ADR as , ‘’ The collective term for the ways that parties can settle civil disputes, with the help of an independent third party and without the need for a formal court hearing.[16] There are three principle forms of ADR. Arbitration, Mediation and Conciliation. Some commentators argue that ADR can be divided in to two classes, those being adjudicative and consensual.[17] The former is called arbitration, and it is quite similar to court proceedings and this has led critics to ask, if there is anything alternative about ADR.[18] Four goals of ADR are : To relieve court congestion, as well as undue delay and cost; to enhance community involvement in the dispute resolution process; to facilitate access to justice and finally; to provide more effective dispute resolution.[19] Lord Phillip is a staunch supporter of Alternative Dispute Resolution. I believe that he wants ADR to be made compulsory in England Conclusion. Alternative Dispute Resolution no doubt has many advantages. There is a chance that you may quickly resolve your problem and you may be awarded compensation. The procedure is less formal court proceedings. In some cases, the decision may be binding on one of the parties, but not on the other party, thereby leaving one party free to pursue the matter through the court if he wishes. Alternative Dispute Resolution is usually much cheaper than going to court and the procedure is confidential. ADR will be difficult in disputes between more than two parties, where the parties have not already contracted for a consolidated arbitration and the parties will not agree to arbitration, going to court is potentially the only way of getting interlocking disputes resolved by the same tribunal.[20] A party that is proposing to enter a number of related contracts should particularly bear this situation at the drafting stage. There are two specific aspects to the matter. First, the related contracts should provide for an identical scheme of dispute resolution otherwise that party may find itself involves mediation or arbitration or litigation depending on which other party is involved.[21] Secondly, the drafting must address the need for multi party proceedings, and establish a back to back set of contractual obligations for this purpose. A difference in the powers at different levels will make the mufti-party proceeding very difficult to conduct.[22] If these two aspects of the matter are not addressed, the parties will be better off, with litigation as the fall back method of dispute resolution.[23] Where a number of actions raise substantially similar issues, such that a decision in one of them will probably enable the parties in the others to compromise their dispute, litigation is likely to be preferable[24]. Where there is a difficult question of interpretation of common form contract, or of the application of a common form of contract to some event which affects a large number of similar contracts or the operation of a market, it may well be preferable to obtain an authoritative ruing of the courts on the point.[25] In numerous jurisdictions, legislation ensures that in the case of a consumer dispute, where the terms upon which the consumer purchased the goods or services includes an arbitration clause, the consumer has a choice of whether to take his dispute to arbitration or litigation.[26] Bibliography Bevan, A.H (1992) Alternative Dispute Resolution, Sweet Maxwell, London Brown, H Marriott, A (1999) ADR Principles and Practice, Sweet Maxwell, London d’Ambrumenil, P.L (1998) What is Dispute Resolution, LLP Referencing Publishing, London Darbyshire, P (1992) English Legal System, Seventh Edition, Sweet Maxwell, London Elliot, C Quinn, F (2005) English Legal System, Sixth Edition, Pearson, Harlow Fiadjoe, A (2004) Alternative Dispute Resolution: A developing world perspective, Cavendish, London. Frank, E (2003) How Arbitration Works, Sixth Edition, Bureau of National Affairs, Washington D.C Freeman, M (ed.) (2006) Alternative Dispute Resolution, Dartmouth Publishing, Aldershot Gillespie, A (2007) The English Legal System, Oxford University Press, Oxford Lord, Phillips (2008) Alternative Dispute Resolution: An English View Point, can be assessed at http://innertemplelibrary.wordpress.com/2008/04/04/alternative-dispute-resolution-an-english-viewpoint-judiciary-of-england-and-wales/> MacFarlane, J, (ed.) (1997) Rethinking Disputes: The Mediation Alternative, Cavendish, London Palmer, M Roberts, S (1998) Dispute Processes, ADR and the Primary Forms of Decision Making, Butterworths, London Petley, M (1992) Alternative Dispute Resolution: An Introduction, College of Law, London Slapper, G Kelly, D (2003) The English Legal System, Cavendish, London Tweeddale, A and Tweeddale, K (2005) Arbitration of Commercial Disputes, Oxford University Press, Oxford Tackaberry, J Marriott, A (2003) Bernstein’s Handbook of Arbitration and Dispute Resolution, Sweet Maxwell, London 1 Footnotes [1] d’Ambrumenil, (1998) p.5 [2] Bevan (1992) p.2 [3] Bevan, (ibid) p.2 [4] MccFarlane, J (1997) p.1 [5] MccFarlane, J (ibid) p.2 [6] MccFarlane, J (ibid) p.2 [7] Palmer, M Roberts, S (1998) p.2 [8] Palmer, M Roberts, S (ibid) p.2 [9] Gillespie, A (2007) p.469 [10] Gillespie, A (ibid) p.470 [11] Darbyshire, P (1992) p.12 [12] Slapper, G Kelly, D (2003) p.314 [13] Slapper, G Kelly, D (ibid) p.314 [14] Tweeddale, A Tweeddale, K (2005) [15] Brown, H Marriott, A (1999) p.12 [16] citied in Gillespie, A (ibid) p.470 [17] Shipman, 2006 p.182 cited in Gillespie, A (ibid) p.470 [18] Boon and Levin, 1999, p.373 Gillespie, A (ibid) p.470 [19] Freeman, M (2006) p.98 [20] Tackaberry, J Marriott, A (2003)p.22 [21] Tackaberry, J Marriott, A (ibid)p.23 [22] Tackaberry, J Marriott, A (ibid)p.23 [23] Tackaberry, J Marriott, A (ibid)p.23 [24] Tackaberry, J Marriott, A (ibid)p.23 [25] Tackaberry, J Marriott, A (ibid)p.23-24 [26] Tackaberry, J Marriott, A (ibid)p.24

What Women Want: Then and Now :: The Wife of Bath’s Tale Essays

What Women Want: Then and Now 1. According to â€Å"The Wife of Bath’s Tale† and the story of Dame Ragnell, what is it that women most desire? Do you agree or disagree? Explain. According to these two tales, women desire sovereignty over their husbands, to be treated as masters over their love. Women wish to be given the ultimate say over whichever decisions might be brought into their household. They wish for their men to behave without arrogance and supremacy, to step to their every move in unison. We women simply ask that a man might think with his head and not with his ego, he should think about the impact his behavior has on us. I would agree to with this statement. However I think that is the nature of HUMAN desire to try to control everything surrounding us, to be able to think and decide on our own how something may affect us, and to decide whether or not our decisions will make our lives better or worse. Humans also like to have control over another and to be able to be so important to someone that no decision is ever made without your consultation. More often than not, even in contemporary culture, men dictate to the household what will be done because they make the money. Then, again as times have changed, this fact becomes fallacy and women have begun to step up to the plate, claiming this right for themselves. Women in the fourteenth century had almost no legal rights and were claimed as their husband’s property for dowry. Presently and thankfully, such tremendous circumstance is uncommon. What men do not understand is that women already have control over everything. They just hide it in subliminal messages so that the man will think any idea his own and find himself brilliant in his pronouncement of resolution. All the while the woman has been furtively planting the idea in his head. It is a matter of arrogance, if you ask me. Men need to feel as though they are the foundation of a family; they are the means by which it might survive. Women are sensible enough to understand this arrogance as a fact, and use it to work in their favor. Women know that so long as they propose the idea as their husband’s, the men will think it great. For example, pretend you need a girl’s night out.

Assess the view that factors and processes within the school are the main cause Essay

Many sociologists argue that â€Å"factors and processes within school are the main cause of difference† These factors include gender, class and ethnicity. All of these things can lead to certain stereotypes and labels being forced upon pupils. The idea that Teachers have certain expectations of different social and ethnic groups means that self-fulfilling prophecy can lead to pupils living out positive and negative labels. The role of gender in educational achievement is that in past times it has been that boys have achieved less than girls in school, this could be that boys have a history of ‘laddish’ behaviour and have had a negative attitude to learning. This had also led to teachers expectations of ‘lads’ to be low which has caused negative stereotypes and labels. All of these things have in turn caused many anti-school subcultures. Jackson did a study about how this ‘laddish’ behaviour is now being seen in some girls which could in fact mean that it is not only boys that have these negative labels but also girls. Another factor that may influence the achievement of girls is that girls now have a lot of higher role models and more opportunities in the future; this can lead to them working harder because they can see themselves being successful in the future. Another In-school factor would be ethnicity, different ethnic groups achieve better than others in education, for example the highest achieving ethnic group is British Chinese and the lowest would be black African Caribbean boys. The reasons for these differences in achievement could be linked to family morals and attitudes to school. Teachers also have expectations of different ethnic groups which again, like gender can lead to positive and negative labels and stereotypes. The curriculum in schools could also lead to this due to it being ethnocentric. Differences in class an play a crucial role in the achievement between different classes, for example working class children do not have as much cultural capital as middle class children and this can play a vital part in how they achieve at school, due to teachers expectations of how they behave and achieve. The idea of the hidden curriculum means that schools are preparing students for middle class jobs with middle class ideas. Also the idea that middle class teachers get on better with idle class students also reinforces the idea of teacher’s expectations which can lead to self-fulfilling prophecy and students either over or under achieving. One more in-school factor would be pupil subcultures and how streaming and setting can lead to both anti and pro school subcultures, This again links to the idea of self-fulfilling prophecy and that students may either reject their labels or follow them. The organisation of the school can also be closely linked to class and how students may be put into lower streams or sets due to their social background and how teachers perceive them. Home backgrounds of students also contribute to a large part of their achievement. The differences in class can lead to many home disadvantages such as material deprivation which means that students do not have enough money for resources such as private tutors, laptops, trips or uniforms; this will give them a disadvantage compared to middle class students. Working class students may also have other responsibilities to attend to such as looking after siblings or even disabled parents; this means that they do not have as much time to spend on studying. Parent’s attitudes towards school and education can also prove to be an impact, if a parent has a negative attitude to school and learning then the child will not have as much pressure or ambition to do as well. This idea of parent expectations links closely with ethnicity and how different ethnic groups view educarion. In conclusion there are many in school processes that can influence the achievement of children such as gender and how girls and boys are perceived and what teachers expect of them. Another would be Class and how working and middle class students achieve differently due to aspects of school life like the hidden curriculum. Also ethnicity and the expectations and ideas about certain groups like the British Chinese. There are also a lot of out of school factors such as home background, material deprivation and parents’ expectations. Overall I believe that the both in school factors and out of school factors contribute to the differences in educational achievement of different social groups.

Analysis Of Rene Descartes Discourse On The Method Essay

Rene Descartes’ â€Å"Discourse on the Method† focuses on distinguishing the human rationale, apart from animals and robots. Wherein, he does so by explaining how neither animals, nor machines possess the same mental faculties as humans. For Descartes distinguishes the human rationale apart from non-humans, even though he does agree the two closely resemble each other because of their sense organs, and physical functions (Descartes, pp22). Nevertheless, it is because the mechanical lacks a necessary aspect of the mind, which consequently separates them from humans. For in Descartes â€Å"Discourse on the Method,† he argues that the noteworthy difference between humans, and the mechanical is that machines are only responding to the world through of their sense organs. Whereas humans possess the significant faculties of reasoning, which allows them to understand external inputs and information obtained from the surrounding environment. This significantly creates a dividing ‘line’, which separates humans from non-humans. For in this paper, I will firstly distinguish the differences between the human and mechanical’s mentality in regards to Descartes â€Å"Discourse on the Method†. Secondly, I will theorize a modern AI that could possess the concept of an intellectual mind, and then hypothesize a powerful AI that lacks the ability to understand its intelligence. Lastly, in disagreeing in why there are no such machines that is equivalent to the human mind. For humans don’t possess all theShow MoreRelatedAnalysis Of Rene Descartes s Work Discourse On The Method Of A Machine1316 Words   |  6 PagesThroughout his work Discourse on the Method, Rene Descartes discusses the things he believes to be true concerning thought. He discusses the things which he believes to be more perfect and the things which he believes to be less perfect (pt 2, para 1). 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