Law: Same problems, other solutions: In some cases, going to court may not be the best answer. Sharon Wallach looks at alternative dispute resolution
Friday 24 July 1992
There are two distinct strands in ADR; family work, and civil or commercial disputes. On the family side, several organisations have moved matrimonial proceedings away from the traditional adversarial form of litigation. In the commercial arena, non-litigious methods of resolving disputes have been used for some time in various areas. The role of the Advice, Conciliation and Arbitration Service in industrial disputes is well known, for example, and more commercial agreements, particularly in the construction field, provide for the resolution of disputes by arbitration. ADR facilities are offered by the non-profit making Centre for Dispute Resolution (CEDR) and there are various networks of solicitors' firms providing mediation services.
A comprehensive report on ADR was prepared for the Law Society last year by Henry Brown, a partner of the City firm Penningtons, a founder of the Family Mediators Association and a writer, lecturer and trainer in the field.
How far has ADR progressed in terms of acceptance since that report? 'We're not talking in terms of a massive breakthrough,' Mr Brown says. 'We need to make more people aware of ADR to bring about a change in the culture of dispute resolution, and that is gradually happening.'
The latest issue of CEDR's newsletter reports that referrals for mediation are steadily increasing. 'Well over pounds 300m worth of disputes has now been referred for possible mediation to CEDR,' it says. More than 125 disputes have been taken on the books; some 16 - involving sums of more than pounds 60m - have been successfully mediated. Cost savings of up to pounds 250,000 for each party have been achieved, the newsletter says.
'Some people are disappointed by the figures,' says Mr Brown, 'but those close to the field regard them with satisfaction. They mean that more and more people are accepting the idea of ADR. It's also worth remembering that commercial ADR arrived in the US in the Seventies, but did not come here until 1990.'
This is too short a timescale in which to expect the process to gain acceptance, Mr Brown says. 'If you talk about the next five years, I think it will happen.' More support is coming from what he regards as unlikely quarters - lawyers renowned as tough and adversarial. 'They realise that training in ADR methods provides them, at the least, with an additional resource. They also recognise that the present system is not 100 per cent ideal and we have to start looking for alternatives.'
One way forward, Mr Brown believes, is to introduce ADR into a greater spread of activities. 'Medical negligence claims, for instance, are crying out for a different process,' he says. Current procedures are unsatisfactory for the health authorities facing enormous claims, for the doctors facing negligence allegations and for the patients, who feel overlooked. 'ADR opens an opportunity for another forum for all three groups - as well as the lawyers - to work out their problems in a non-adversarial way.'
A report commissioned by Turner Kenneth Brown, the London law firm, has tested the reaction to ADR techniques, particularly in the construction, insurance and information technology sectors. The survey suggested that the perceived advantages of ADR were that it was cheaper, saved time, allowed a continuing relationship with the other party, offered flexibility and confidentiality and preserved goodwill.
Of the sample surveyed, 69 per cent were aware of the existence of ADR. However, only 9 per cent had used it. 'Business people are fascinated by ADR,' Mr Brown says. 'But they are waiting for someone else to use it first.'
Manpower is not a problem to the increasing acceptance of ADR: there are now many thousands of mediators in this country, with a constant flow of people training. 'Labour disputes aside, there are probably more mediators than cases,' Mr Brown says.
Funding, on the other hand, is 'the crucial issue in a coherent thrust for change'. All the organisations in the different fields of ADR are worried about it, Mr Brown says. 'There must be funds for central organisations to provide supervision, training and support, to maintain a code of practice and keep practitioners up to date.' The funding of cases is part of the same issue. 'We don't want ADR to be seen as a middle-class, middle-income activity, but at the moment that is what it is. We continue to hope that legal aid will be made available.'
Most civil and commercial cases are paid for by clients or their insurance companies. But, as the Law Society's recently published second report on ADR underlines, in family disputes, providers of ADR services are largely dependent on charitable grants and voluntary contributions supplemented by a limited amount of legal aid under the green form scheme in specific instances.
'The availability of state funding for ADR is crucial for its development,' the report says. The opportunity to use ADR 'should be available to anyone involved in a dispute which might be resolved in this way'.
Mr Brown adds: 'The frustrations are that those with the power are showing no signs of readiness to try it out. The problem is that there is as yet no empirical evidence as to whether ADR techniques would bring costs savings, and there is no will on Government's part to provide a wider net - all it is doing is cutting back. There are a lot of arguments, questions and reservations - but also a lot of support - that is the shift.'
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