Table of Contents
The Civil Justice System 2
Negotiation 4
Mediation 5
Conciliation 7
Arbitration 8
Recommendations 10
Conclusion 11
Bibliography 12
The Civil Justice System
Civil Justice System (CJS) deals with dispute between two or more individuals, companies and institutions. The objective of CJS is to allowed individuals to defend their legal rights and solve disagreement in a fair and affordable way. The person who starts the case is called claimant and the person being sued is called the defendant. If the claimant brings up a case then it will be heard at county court and high court. The standard of proof in CJS is ‘on the balance of probabilities’, the judge will decide the party on the lower standard to be right. The party who win the case will receive civil remedies. These include common law damages, equitable remedies such as injunction, specific performance, recession and rectification[1]. CJS covers dispute arises from contract law, tort law, family law, company law and others.
However, CJS has failed to achieve its objective of solving disagreement in a fair and affordable way. According to Civil Justice Review (CJR) 1988 the delay in litigation has caused continuing stress, anxiety and financial problem for layman. The process is long and stressful, which causes difficulties and inconvenience for ordinary people [2]. Furthermore, the more complex and longer the time the litigation takes, the higher the cost charged by lawyers. This is due to prolong time in the court and the increase in paperwork.
Most of the time, the cost of bringing up the case in court may exceed the amount of damages rewarded. This has caused economically weaker individuals to suffer their lost of rights to a fair civil procedure and forces them to accept the unfair settlements.
Cases are taken a long time to reach a conclusion, this often takes almost a year even though the complexity of the case is low. There is always a delay in litigation which slows down the process. The procedure to file a case when starting a court case used to be so complex and too many paperwork is needed to be done thus delaying the process further and further.
There is also criticism regarding inequality between wealthy litigant and economically weaker litigant. This usually happens in dispute between an employer and an employee. CJS was also criticised that the old English terms and phrases used in the courts is too difficult for litigants to understand, and this has also created unnecessary cost to look up the meaning of the word in intrinsic or extrinsic aid[3].
Furthermore, it is also difficult to estimate the cost and how long litigation will take and created uncertainty in CJS. This has prevented individuals to seek for justice because it usually comes with a large sum of costs. The structure of CJS is also not organised in terms of it’s unclear that where a case should be heard and have the first trial. There is lack of a clear guideline for the allocation of the cases. The problems listed above is clearly stated in the report by Lord Woolf in Access to Justice (1996) and Lord Woolf has made some suggestion for improvement. For example, it has insisted the parties have to follow the timetable set by the court strictly. This can be seen in Vinos v Marks and Spencers plc (2000) where the claimant’s solicitor was late in serving the claims to the defendant and the claim was struck back by the court[4]. Lord Woolf has encouraged the use of Alternative dispute resolution (ADR) in CJS to overcome the problems. In the legal aid rules funding is not available for cases which can come to agreement by ADR. This has proven the increasing importance of ADR in CJS. There are a few types of ADR, which are negotiation, mediation, conciliation and arbitration.
Negotiation
Negotiation is solving the dispute between the parties themselves. If both parties are unable to conclude, they might instruct a solicitor to help them to solve the dispute. Once there is involvement of lawyers then the cost will be higher. In fact, even if the litigation has started negotiation can still take place outside the court by representing lawyers.
Negotiation is a voluntary act which means no forcing in the participation of negotiation and the parties involved are free to accept or disagree with the outcome of the negotiation and even pull out at the midst of negotiation[5]. Negotiation is the least formal form of ADR because the parties are free to choose how, when or where the negotiation takes place and the court does not have a set of rules for how the negotiation must be done.