Business Law 4
Evaluate the purpose of Alternative Dispute Resolution (ADR) and, with particular reference to the services provided by ACAS, assess to what extent it is a successful means of resolving disputes outside the formal judicial process.
Conflictshave been part and parcel of human existence. Throughout the historyof man, conflicts involving individuals as well those pitting onecommunity against the other have been reported. The conflicts haveexisted across different cultures and religions. In the same waythat conflicts have been a core element of the human society,approaches and philosophies of resolving the conflicts have also beenpart of the human heritage (Blake et al, 2011). Individuals, groupsas well as nations have over the past years attempted to manageconflicts in order to reduce the undesirable and negative impact theconflicts may result into. Alternative dispute resolution (ADR) is aterm that is used to describe a set of techniques and approaches thatare used to resolve disputes in a way that is not confrontational(Jillani, 2005). ADR entails a wide range of approaches includingnegotiations, arbitration, mediation and adjudication. The mainpurpose of ADR is to bring conflicts to an end without involving thecivil litigation process.
Utilizationof ADR has its origins in the United States in the 1970s. Theemergence of the ADR movement was necessitated by the need efficientand effective alternative approaches to litigation. Over the past 3decades, the movement has expanded to the levels where even the legalsystems across the globe now embrace it enthusiastically (Blake etal, 2011). ADR has over this period of time proved to be a moreeffective approach to resolving disputes out of court. Given itssuccess, it has been institutionalized by most of the judicialsystems around the world. ADR makes it possible for issues definedconflicting parties to be resolved by reaching a common agreement orsettlement. Not only has it proved to be beneficial to conflictingparties, but ADR has also benefited courts and the judicial systemsas whole by reducing the time as well as costs involved settlingdisputes in courts.
Thereare many forms of ADR with the common ones including Arbitration,mediation, negotiation and early neutral evaluation.
Itinvolves an outside party being given the mandate to determine theissue at hand. When using arbitration, a professional arbitratortakes up the role of presiding over the conflict resolution process.The arbitrator has the power to impose a binding decision in thiscase. Arbitration is consensual but it can also be directed by acourt of law. The arbitrator is often selected through a mutualagreement between the parties. He can also be appointed by a court.It resembles civil litigation in a number of ways, especially therules of procedure. However, it does not involve cross examinationand as opposed to litigation which is public, arbitration is private.By avoiding the utilization of courts and being private, arbitrationoffers companies that wish to go on with their relationship after theresolving of the dispute and those that wish to avoid public exposurean advantage. It is more informal and speedier compared tolitigation. However, it is quite costlier compared to other ADRapproaches. Additionally, the arbitration award may fail to end thedispute, leading to the award being challenged.
Inmediation, disputes are usually solved by a mediator through a mutualagreement of the conflicting parties. Unlike arbitration where themediator makes the final decision, the role of the mediator is topromote the process of negotiation between the disputing parties withthe main aim of arriving at a conclusion that both the parties willbe comfortable with. The role of the mediator in this case is acreative one, since more than one option is often available to theconflicting parties. Mediation gives emphasis to a number of aspectsthat relate to disputes which are often overlooked by litigationsystems. These aspects include the relative weakness and strength ofthe claims and defense made by each party, the impact that the issuehas on the value of the claim made as well as creative solutions thatwould benefit both the parties. Not only is it a more reflectiveapproach to dispute resolution, but is also cheap, speedy andconfidential. However, it has some disadvantages which include theinability of the mediator to impose a binding decision andirrelevance in cases where a court remedy is necessary.
Itinvolves the disputing parties sitting together to discuss thepossible outcomes with each other. Demands and proposals are oftenexchanged, with the parties engaging in arguments and discussionswith the main aim of reaching a conceivable solution. Ury et al(1993) points out that there are three different orientations ofdispute resolution through negotiation, namely rights basednegotiation, interest based negotiation and power based negotiation.The main goal of negotiation is to arrive at a decision that both theparties will readily accept.
Inthis approach, parties seek the aid of a third party, whose main roleis to evaluate the commercial cases before they can go on to trail.It is mostly used in courts when the cases are commercial in nature.It is non-binding and involves the impartial party giving anevaluation of the flaws and merits of the said dispute. In mostcases, the position of the evaluator is taken up by an experiencelawyer who also has extensive knowledge of the field in which theissue arises from. Documents and written arguments are tendered bythe conflicting parties, with the evaluator setting a date on whichhe will examine the arguments and documents before giving hisopinion. Both parties as well as their counsels are usually requiredto be present during the evaluation sessions. The evaluator may alsoexplore mediation and calculate the cost of litigation after which headvices the parties on the most appropriate approach to take. Failureto reach an agreement results to the dispute being sent back totrial.
ADRis more flexible compared to litigation. The disputing parties havemore freedom to decide on the procedural rules to apply to theirdisputes. Additionally, the parties involved have the freedom tochoose the person to preside over the case. The person presiding overthe case be it mediation, arbitration or negotiation does not needsto have expertise in the field the issue arises from but it is not amust that they be an attorney. ADR is also much faster and lesscostly compared to litigation (Jillani, 2005). ADR does not involveattorneys or witnesses meaning that the expenses associated with themas in case of litigation are avoided. As opposed to litigation wherecases take a long time to conclude and where appeals may even resultto lengthy court battles, ADR makes it possible for the parties toschedule when the cases will be heard and this often begins as soonas the parties agree on the day they will meet and present theirclaims and defense (Albrightstoddard,2015).
ADRalso allows increased participation of the litigants in conflictresolution. The results of ADR process can also be kept confidential.This often involves both the parties agreeing that such informationshould not be disclosed even when the parties have to go to courtlater on. It also promotes cooperation between the disputingparties. Most importantly, ADR approaches can be adopted even aftertrial (Jillani, 2005). Given the many advantage ADR has, it is quitecommon for courts to refer some disputes to ADR. This means that ADRplays the role of replacing the costly and often lengthy litigationprocess with a more effective and efficient alternative that is lesscostly and speedy.
Servicesprovided by ACAS
The Advisory,Conciliation and Arbitration Service (Acas)was established in 1974 as a public body whose main role is todispute resolution and prevention services. The body has statutoryresponsibilities and has over the past been associated with highprofile disputes of a collective nature. The services provided by thebody include mediation, conciliation and arbitration (ACAS, 2005).Acas provides conciliation services as a free and statutory service.The services are provided at both individual and collective levels.In disputes involving groups of employees and employers or thosepitting trade unions and employers, the body offers collectiveconciliation. On the other hand, individual conciliation is offeredfollowingan employee’s lodging of an ‘ET1’ application to the EmploymentTribunal Service (ETS) alleging that their statutory employmentrights have been infringed. It is reported about 1300 collectiveconciliation requests are made each year and that Acas deals withapproximately 100,000 individual conciliation cases every year (ACAS,2005). With regard to mediation, Acas offers both individual andcollective forms of mediation. Apart from offering the mediationservices, the body has recently been approved to offer in-housemediators training services. This follows an increase in demand forin-house mediators to help solve conflicts within organizations.
TheADR services offered by Acas are voluntary and binding. This meansthat they are binding in honor only. Additionally, the arbitrationservices offered are free, meaning that conflicting parties can savea great amount of money if they decide to utilize the service insteadof filling the cases in court. Parties can also come up with theirown rules and terms of references, thus facilitating a speedyresolution. Additionally, Acas guarantees that it maintains highlevels of confidentiality as well as impartiality. The servicesoffered highlights the important role that ADR plays (Sen, 2010). Themany disputes that have been successfully settled by the body isevidence enough that ADR is fast growing into the most preferred approach to both commercial and non-commercial disputes
Alternativedispute resolution (ADR) is a term that is used to describe a set oftechniques and approaches that are used to resolve disputes in a waythat is not confrontational. It entails a wide range of approachesincluding negotiations, arbitration, mediation and adjudication. Themain purpose of ADR is to bring conflicts to an end without involvingthe civil litigation process. The emergence of the ADR movement wasnecessitated by the need efficient and effective alternativeapproaches to litigation. Over the past 3 decades, the movement hasexpanded to the levels where even the legal systems across the globenow embrace it enthusiastically. It has proved to be a more effectiveapproach to resolving disputes out of court. Given its success, ithas been institutionalized by most of the judicial systems around theworld. ADR makes it possible for issues defined conflicting partiesto be resolved by reaching a common agreement or settlement.
Inthe United Kingdom, The Advisory,Conciliation and Arbitration Service (Acas)was established to offer dispute resolution and prevention services.The body has statutory responsibilities and has over the past beenassociated with high profile disputes of a collective nature. Some ofthe services it provides include mediation, conciliation andarbitration. Acas provides conciliation services as a free andstatutory service. The services are provided at both individual andcollective levels. In disputes involving groups of employees andemployers or those pitting trade unions and employers, the bodyoffers collective conciliation. Theservices offered by the institution highlights the important rolethat ADR plays. The many disputes that have been successfully settledby the body is evidence enough that ADR is fast growing into the mostpreferred approach to both commercial and non-commercial disputes.Apart from being less costly, the ADR services are also speedy andthose who seek the services are assured of confidentiality andimpartiality.
Explain why European Union law takes precedence over domestic law in the United Kingdom
Sincethe UK is a European Union member state, then the union laws areapplicable in the country and take precedence of other national laws.The applicability of the union laws in UK came after the accession ofthe country to the European community membership. The applicabilityof the law to the UK impacts the country’s legal system (Ball,2015).The European Union laws are supreme over the domestic laws of anycountry that is a member state and the domestic laws that conflictwith the EU laws have to be ignored in favor of the superior EU laws.This legal doctrine came into being as a result of a number ofdecisions made by the European court of Justice (Chalmers,2006).
Underthe British constitutional convention, the parliament is a sovereignbody. It thus follows that those laws that are passed by parliamentare take the first position over other laws derived from othersources. The sovereignty of the parliament as established by theconstitutions further implies that the highest legislative authorityin the country is the parliament. Additionally, the ability of theparliament to make laws cannot be restricted by any court and thatthere are no set limits for matters on which the parliament canlegislate (Ryanand Foster, 2007).The sovereignty bestowed on parliament also means that a futureparliament cannot be bound by the present or any other parliament.However, membership to the European Union has had an impact on thesovereignty of the UK parliament (Ball,2015).
Theprinciple of the EU legal order that makes it possible for the unionto have supreme power over all the members of the union had been inplace even prior to UK’s joining of the union in 1973.Additionally, the signing of the Brussels treaty of accession in 1972meant that the UK had agreed to recognize the supreme authority ofthe EU. This led to the incorporation of the European communities’act of 1972 by the UK parliament. The incorporation by an act ofparliament meant that the act would produce a legal obligation inUK’s internal legal system (Kaczorowska, 2009). In the Factortamecase of 1988, the court ruled that the EU laws takes precedence overdomestic laws as a result of the European Community Act that the UKsigned in 1972. Lord Bridge who gave the ruling pointed out that theparliament voluntarily accepted any limitations to its sovereigntywhen it enacted the Europeans communities act (Chalmers,2006).
EUlaws can be categorized into for different types namely regulations,treaties, decisions and directives. Under article 10(5) of thetreaty, all members of the union are required to take the necessarymeasures to ensure that their legal obligations to the Union arefulfilled. Article 249 of the European Community treaty lays down theunion’s law making authority. The European court of Justice alsoholds that the union’s law are part and parcel of the domestic lawof every member state (Kaczorowska, 2009). Additionally, it holdsthat in case of conflict between the domestic law and the union law,the union law prevails over the domestic law. All UK courts arerequired to interpret the issues related to the Union laws in linewith ECJ rulings (Ball,2015).
Section3(1) of the treaty points out that the UK parliament has given thecourts the mandate to aid the UK in carrying out of its obligationsas envisioned in the treaty. By giving this mandate to the courts,the parliament therefore intents the courts to make use of the Unionlaws in cases where Acts of parliament conflict with the communitylaws (Ball,2015).This implies that the European Union laws come before the domesticlaws. Article 220 of the European community treaty points out that itis the ECJ’s task to ensure that the application and interpretationof the law is observed (Kaczorowska, 2009)
ACAS,(2005). Makingmore of Alternative Dispute Resolution.1st ed. [ebook] pp.1-10. Available at:http://www.acas.org.uk/media/pdf/d/s/making-more-of-alternative-dispute-resolution-accessible-version-July-2011.pdf[Accessed 13 Apr. 2015].
Albrightstoddard,(2015). THEADVANTAGES AND DISADVANTAGES OF ADR.[online] Albrightstoddard.com. Available at:http://www.albrightstoddard.com/blog/bid/223519/THE-ADVANTAGES-AND-DISADVANTAGES-OF-ADR[Accessed 13 Apr. 2015].
Ball,R. (2015). Legitimacyof the European Union through legal rationality.[S.l.]: Routledge.
Blake,S., Browne, J. and Sime, S. (2011). Apractical approach to alternative dispute resolution.Oxford: Oxford University Press.
Chalmers,D. (2006). EuropeanUnion law. Cambridge, UK: CambridgeUniversity Press.
Jillani,T. (2005). DelayedJustice and the Role of ADR.1st ed. [ebook] pp.1-13. Available at:http://www.supremecourt.gov.pk/ijc/articles/7/1.pdf [Accessed 13 Apr.2015].
Kaczorowska,A. (2009). EuropeanUnion law. Abingdon, Oxon [England]:Routledge-Cavendish.
Ryan,M. and Foster, S. (2007). Unlockingconstitutional and administrative law.London: Hodder Arnold.
Sen,A. (2010). Therole of Acas in dispute resolutionIn.1st ed. [ebook] Available at:http://www.acas.org.uk/media/pdf/d/s/making-more-of-alternative-dispute-resolution-accessible-version-July-2011.pdf[Accessed 13 Apr. 2015].
Ury,W., Brett, J. and Goldberg, S. (1993). Gettingdisputes resolved.San Francisco: Jossey-Bass.