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Part B Analysis

The points for and against going to court

The alternative to going to court is to participate in Alternative Dispute Resolution

("ADR"). ADR has been described as "a process of solving problems without the

assistance of the Courts."1(Pengilley, 1990)

Some forms of ADR include:

Mediation This is where a trained facilitator assists with the negotiationsbetween the parties or their legal representatives. In mediation the case is

discussed in confidence and broader interests (not just legal) are taken into

account. Mediation requires the parties to agree an outcome, which may

include non-monetary remedies (such as an apology). This form of ADR is

quick and cheap, but it may not lead to a resolution. It also requires both

parties to want a resolution. Mediation is not suitable if a court remedy is

required (e.g. an injunction).

Early Neutral Evaluation (ENE) In ENE a neutral party gives a non-bindingevaluation of the case. Like Mediation, the evidence presented through the

process and the outcome remains confidential. By highlighting the cases

merits and flaws, the neutral party places the parties in a better position to

agree to a resolution. However, after going through this process, a resolution

may not be found.

Expert Determination This is where an independent third party withrelevant expertise (e.g. an engineer) assists the parties to resolve the dispute.

Again, the evidence and outcomes remain confidential. This process ischeaper and faster than a court process, but it may not result in a resolution.

However, by providing the parties with factual feedback, the expert may

place them in a better position to understand the strength of their case in

court.

Arbitration Professional arbitrators, who are usually given the power toimpose a binding decision on both parties, operate this process. This is most

often used in commercial disputes as it enables the parties to have the case

heard in confidence, but it can be just as lengthy and expensive as a court

case.

In summary the benefits of ADR over going to court are:

i. It can be quicker and cheaper (no court fees, high costs of lengthy trial, costof lawyers, expert witnesses etc);

ii. The evidence and the outcome are confidential and the parties have theoption to agree that information disclosed during negotiations cannot be

used later in proceedings. This is as opposed to a court trial, which is open to

the public;

iii. enables the parties to maintain control of the dispute resolution process.

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However there are benefits of going to court as opposed to undertaking ADR. These

are:

i. In court, a resolution is guaranteed.ii. The courts take control of the situation and force both parties to participate

in order to produce a solution.

iii. Only the legal facts are presented in the court.

Case 4 R.V Bonilla ADR versus Court appearance

The police charged Mr. Bonilla with being a public nuisance and assault. So Mr.

Bonilla did not have a choice about going to the Magistrate court. However, Mr.

Bonilla stated that his neighbours were being racist and very abusive towards him

and his family. If the defendant believes he has a case against his neighbours, he can

pursue this through Alternative Dispute Resolution. This option is similar to a CivilCase however considering Mr. Bonilla is a pensioner; ADR can be a much cheaper

alternative. ADR would most likely resolve the conflict between the neighbours

Conclusion

The courts appear to be more favored for dispute resolutions when the parties are

unlikely to come to an agreement without the imposition of a court ordered penalty.

References:

1 W Pengilley, "Alternative Dispute Resolution: The Philosophy and the Need" (1990) 1 ADRJ 81.

Australia: Alternative Dispute Resolution: Trends, Traps and Benefits Last Updated: 2 April 2012

Article byGraham Maher

http://www.mondaq.com/australia/x/170796/Arbitration+Dispute+Resolution/Alternative+Dispute+

Resolution+Trends+Traps+and+Benefits

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