unit 01.typologiest of dis. resolution

8/6/2019 Unit 01.Typologiest of Dis. Resolution

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Typologies of DisputeResolution

Unit 1

Dr. Lisa Webley


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Theories of Dispute Resolution &

Confusion

Much of the literature confuses mode or type (the way that adispute is resolved) with theoretical underpinning, and alsowith professional affiliations.

For example: Court adjudication, arbitration, mediation, third party

negotiation.

One 3 rd party facilitator for all parties, or one per party(partisan or neutral)

Theory underpinning the mode may be adversarialism

and/or mutualism/consensus (there are others). Professionals involved may be lawyers, non-lawyer other

professionals, no third party assistance.For a discussion see: W. Twining Alternative to What? Theories of Litigation,Procedure and Dispute Settlement in Anglo-American Jurisprudence: SomeNeglected Classics (1993) Vol. 56 No. 3 Modern Law Review380


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Dispute Resolution Mode/Mechanism/ Type

Court adjudication

Arbitration

Negotiation via third parties (solicitor negotiation, or

other negotiator)

Negotiation between the parties (negotiation &

mediation)

Hybrid medarb, litigotiation etc.


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Other Considerations

Theory underpinning the mode (in simple terms) may be:

Adversarialism

Inquiry based (more on this in later lectures)

Consensus basedThird party assistance may be:

Partisan

Neutral

Both the parties may have partisans to assist them, and

then make

use of a ne

utral t

hird party as well in relation tothe mediation/arbitration/adjudication

Decision/ Settlement may be:

Based on law

May have regard to law

May not be related to legal position at all


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AdversarialismAdversarialism (UK model) is often elided with zealous advocacy(US model) although the two are different in some respects.

Adversarialism in a UK context assumes Partisanship in relation to the parties or their representatives.

A degree of equality of arms. The first duty of the advocate is to the court and not to the client

(unlike zealous advocacy).

The advocate is required to bring all relevant legal authorities to thecourt (distinguishing them if necessary from the clients situation).

Court rules will be applied so as to ensure proceduralfairness/justice.

The judge will be free from real and apparent bias. The judge or judges will then adjudicate afterhearing both sides.

But note, partisanship does not necessarily require adversarialismin order to operate.


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Adversarialism & Zealous AdvocacyConfusion?

An Advocate, by his sacred duty whichhe owes his clients,knows in the discharge of that office but one person in the

world, th

atclient and none ot

her. To save t

hatclient by allexpedient means, to protect that client at all hazards and costs,

to all others, and among others to himself, it is the highest andmost unquestioned ofhis duties; and he must not regard thealarm, the suffering, the torment, the destruction whichhe maybring upon any other. Nay, separating even the duties of apatriot from those of an advocate, and casting them, if need be,

to the wind, he must go on reckless of the consequences, ifhisfate it should unhappily be to involve his country in confusion forhis clients protection

Report of the Proceedings Before the House of Lords on a Bill of Pains and PenaltiesAgainst her Majesty Caroline Amelia Elizabeth ed. J. Nightingale, 1-2 (London 1821) ascited by D.L. Rhode An Adversarial Exchange on Adversarial Ethics: Text, Subtext, andContext (1991) Vol. 41 No. 1 Journal of Legal Education 21 at 30.


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Adversarialism

It is argued that adversarialism is linked toautonomy, views on objectivity and the assertion of

a righ

t against anoth

ers position. It is argu

ed th

at itis outcome orientated. See T. Cockburn Childrenand the Feminist Ethic of Case (2005) Vol. 12 No.1 Childhood71

Adversarialism has been criticised, particularly in

a family law context, as hostile and destructive:See H.A. Finlay Family mediation and theAdversary Process (1993) Vol. 7AustralianJournal of Family Law63.


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Mutualism/Consensus

In contrast, mutualism has been linked to notions of mutualrespect, co-operation, inter relationships and mutual trustand development. It is also argued that it is process rather

than outcome focused.It has also been linked to feminism by some commentators,as opposed to masculinism that has been linked toadversarialism.

It is said to be based on facilitation and settlementstrategies.

Law may or may not be relevant within this context. Theparties work out their own acceptable frame of reference andreach a consensus to resolve the issue(s). Law may be onesuch frame of reference.


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Mutualism/ Consensus

See for example: L.Mulcahy Feminist Fever?Cultures of Adversarialism in the Aftermath of the

Woolf Reforms J. Holder & C. OCinneide (eds.)Current Legal Problems 2005(Oxford: OUP,2006).

Again see Cockburn and also M. Karlberg The

Power of Discourse and the Discourse of Power:Pursuing Peace through Discourse Intervention(2005) Vol. 10 No. 1 International Journal of PeaceStudies 1.


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Court Based Methods

Most legal disputes in England and Wales, even if

referred to legal professionals, will be settled eitherby the parties on their own or with legal professionalhelp, rather than adjudicated by a judge.

This is often referred to as the vanishing trial.

Some consider this to be a positive, others anegative. We shall consider this in unit 6.


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Non-Court Based Methods

These have usually focused on methods that do not rely on theformal legal system nor require legal professionals (even thoughthey may involve legal professionals)..

They are commonly referred to under the umbrella term of ADR

Alternative Dispute Resolution, meaning an alternative to court-based dispute resolution.

In the UK it has been formalised as a term that is used inopposition to the court system, even though it is being embracedby some judges and some courts.

It has been developing here as a movement both within legal

professional and other professional circles since the 1960s.The family law ADR movement has different roots from thegeneral civil law movement and there are different professionalbodies regulating family focussed ADR professionals (UK Collegeof Family Mediators and others) and general civil ADRprofessionals (the Civil Mediation Council although there areothers such as CEDR and others).


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Negotiated Settlement

Some view this as an alternative to court, others as anecessary step in the process. But it is a standard part of

any dispute resolution system and so others do not considerthis to be an alternative as such.

There is no requirement that individuals negotiate viasolicitors, even though this is common practice.

Negotiations often continue in the background even whenother forms of ADR are being attempted.


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Mediation

Structured negotiations facilitated by a neutral thirdparty or third parties.

Mediation usually follows a particular structure.

Mediation may be undertaken by the partiesthemselves or with the help of or via their legal orother representatives.

It may be undertaken by both the parties and theirlegal or other representatives.


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Mediation

Marion Roberts has described mediation thus

a process of dispute resolution in which the disputants meetwith the mediator to talk over and then attempt to settle theirdifferences the subjective standards of the parties are asimportant, if not more important, than external standards offairness, such as the law; the quality of the process andsatisfaction of the parties is more important that reaching anagreement for the sake of settlement

M. Roberts System of Selves? Some Ethical Issues in Family Mediation (1992) Vol. 10

Mediation Quarterly11.


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Different Types of Mediation

Mediators:

Traditional mediation (one mediator)

Co-mediation (two or more mediators)

Method:

Plenary (in the room together)

Shuttle mediation (different rooms, the mediator

shuttles between the two)

Time Frame:

Single session

Multiple sessions


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Mediation Approaches

Facilitative Mediatorcontrols the process and thus assists the

parties to negotiate between themselves.

Evaluative Settlement focused, with the mediator involved in

evaluating the various options being presented(including their strengths and weaknesses) andsuggesting possible solutions.

Transformative Seeks to empower the participants and to help them

develop their dispute resolution skills not just for thissituation but for the future too.


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Mediation Strengths

Seeks to reach agreement rather than promotedisharmony.

May preserve relationships in a business andpersonal context.

May help individuals to develop dispute resolutionskills.

Private (and often confidential) process.

Make be quicker and cheaper than court basedadjudication.


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Mediation Weaknesses

One or more of the parties may feel coerced ormay later regret their decision, whereas if a judge

makes a decision t

here may be someone else toblame.

If mediation does not work then costs mayactually be greater and the case more lengthy ifthe parties then have to use another dispute

resolution mechanism.It is private and thus not open to public scrutiny.

There may be varying standards of mediation.


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Early Neutral Evaluation

Less frequently used.

More likely to be used in high value commercial

cases.It is a method whereby the parties get anindependent evaluation or assessment of thesituation (in legal terms) about the likely outcome

were acase to go to

cou

rt.This then feeds in to the settlement negotiationsbetween the parties.


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Arbitration

The parties select a decision-maker (who is notacting as a judge in a court) to determine theirdispute for them.

The parties traditionally choose 1, 2 or 3 arbitrators.

Arbitration is much more usual in the UK incommercial disputes.

The parties are bound by the decision.

The parties are bo

und in

contra

ct law rat

her t

hanvia a court order.

However some arbitration agreements may beenforced via courts as a result of internationaltreaties relating to international commercialarbitration.


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Arbitration Strengths

It is private (and confidential).

The parties may select (and agree on) theirarbitrators who may be legal experts, experts in

other fields or a combination of the two,This means that the parties may have particularconfidence in the decision-makers and theirknowledge of the industry from which the disputearises.

It is considered to be cheaper and quicker thangoing to court.


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Arbitration Weaknesses

No public oversight, although there are appealmechanisms built in to some internationalcommercial arbitration systems.

Enforcing the decisions may be a problem insome circumstances.

In the UK arbitration tends to be used in acommercial context between companies ratherthan between individuals, perhaps because it ismore expensive (usually) than mediation.Some companies or individuals may prefer to goto court, however, they may be required to go toarbitration if they have an arbitration clause in theircontract with the other parties to the dispute.


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AdjudicationO.M. Fiss Against Settlement (1984) Vol. 93 Yale LawJournal1073

Adjudication has a public function, it is not a judicialdecision of a private dispute.

It reinforces the values embodied in the law and appliesthem in society.

It protects legal rights and reinforces legalresponsibilities.

It is based in rationality and objectivity.

By contrast, settlement is a decision to reach a peace,

rather than justice. Private ordering undermines the duty of the law to

reinforce and apply values, he argues.

Adjudication has an essential role to play in preservingthe rule of law.

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