Delivering Dispute Resolution

A Holistic Review of Models in England and Wales

Christopher Hodges

• Publisher: Hart/Beck
• Year: 2019
• ISBN:
  9781509916917
• Edition: 1
• Topic: Diritto
• Subtopic: Strumenti alternativi per la risoluzione di controversie

This book reviews the techniques, mechanisms and architectures of the way disputes are processed in England and Wales. Adopting a comparative approach, it evaluates the current state of the main different types of dispute resolution systems, including business, consumer, personal injury, family, property, employment and claims against the state. It provides a holistic overview of the whole system and suggests both systemic and detailed reforms. Examining dispute resolution pathways from users' perspectives, the book highlights options such as ombudsmen, regulators, tribunals and courts as well as mediation and other ADR and ODR approaches. It maps numerous sectoral developments to see if learning might be spread to other sectors. Several recurrent themes arise, including the diversification in the use of techniques; adoption of digital, online and artificial technology; cost and funding constraints; the emergence of new intermediaries; the need to focus accessibility arrangements for people and businesses that need help with their problems; and identifying effective ways for achieving behavioural change. This timely study analyses the shift from adversarial legalism to softer means of resolving social problems, and points to a major opportunity to devise an imaginative and holistic strategic vision for the jurisdiction. This title is included in Bloomsbury Professional's International Arbitration online service.

1

Introduction

This book reviews the techniques, mechanisms and architectures of the way we resolve disputes in England and Wales. This is both long overdue and timely. There has been significant development in how particular types of disputes are resolved but there has not hitherto been a holistic review of the whole landscape. The approach adopted here is a comparative evaluation of the current state of the main different types of dispute resolution systems, and ways of resolving different types of disputes, set in some recent historical context.

Indeed, the first finding of this analysis is how many different types of dispute resolution exist. Anyone who thinks that a court is the only option will be in for either a shock or a pleasant surprise at the availability of other options, even more so because some of them are highly effective.

The second finding is that these various silos have evolved piecemeal and with no systematic attempt to learn from experiments or developments in other silos and no overarching plan for joining things up in a coordinated fashion. This book is an attempt to do those things. There is a need, first, to map and evaluate the various sectoral developments so as to see if learning might be spread to other sectors and, secondly, to carry out a holistic overview of the whole system to see if all the individual parts fit well together and how they might collectively be developed as part of a coherent whole.

The analysis is of the major dispute resolution pathways that exist in the jurisdiction of England and Wales. Three self-imposed limitations should be mentioned at the start, as this book is large enough as it is without including wider material. First, this book does not focus on criminal or regulatory disputes or pathways. Secondly, although the jurisdiction is that of England and Wales, the focus of this book is primarily on England. This is because some variations in architecture exist in Wales (the Welsh Ombudsman and now a separate tribunal bureaucracy) that call for their own analysis. Indeed, a number of interesting developments are occurring in Wales that deserve separate treatment. Thirdly, a range of interesting materials and experience exist in other jurisdictions, from Scotland to Australia. Considerations of space have regrettably led almost all of these to be excluded from this work for reasons of space. Hopefully the approach adopted here can lead on to similar inquiries covering an even wider approach and other jurisdictions.

I.Types of Disputes Covered

This book is organised around major types of dispute resolution as a means of examining the dispute resolution mechanisms that operate in each type. The main types are the following:

•General disputes handled in courts, and associated alternative dispute resolution (ADR) techniques – see chapters four and five.

•Consumer-trader disputes, especially ‘consumer ADR’ and consumer Ombudsmen – see chapter nine.

•Personal injury claims, arising primarily from road traffic, workplace and healthcare accidents – see chapter ten.

•Family disputes, involving family courts and some mediation – see chapter eleven.

•Property disputes, involving landlords and tenants in the residential and social housing markets – see chapter twelve.

•Disputes between citizens and the State, involving public authorities’ complaints mechanisms, judicial review, tribunals, and the public Ombudsmen – see chapter thirteen.

•Disputes between businesses, handled in specialist courts large and small. We do not devote particular attention to arbitration mechanisms since they are privately organised and this book focuses primarily on publicly organised mechanisms. Large business disputes are covered in chapter four. For disputes involving small and medium-sized businesses (SMEs) with their business customers, especially over late payment or market abuse, noting the Groceries Code Adjudicator, the Pubs Code Adjudicator and the Small Business Commissioner – see chapter fourteen.

•Employment disputes, especially involving ACAS and Employment Tribunals – see chapter fifteen.

This selection of dispute types and fora is very generalised and not intended to be comprehensive – nor could it be without a far larger study. But it should be sufficiently diverse to give a reasonable and broadly representative range of types, mechanisms and structures to enable some sensible comparisons to be made.

It is clear that there exists a dispute resolution landscape with significant diversity in intermediaries, mechanisms, techniques and pathways. These have arisen piecemeal, as particular approaches have been thought to be useful for different situations. There has hitherto been no strategic plan or evaluative review. So the need for this holistic review is timely. We need to ask what processes, techniques, structures and landscapes, alone or in combination, are effective and efficient. What lessons can be learned from the comparisons that are available? What should be changed, either in simple elements such as revising individual processes or in major landscape reform?

Further, various systems are undergoing a digital modernisation. Lessons can be learned from comparing changes and their effects in different contexts.

We will proceed in this introductory chapter by noting the basic modes, structures and techniques of dispute resolution that will recur in different guises as we proceed to examine the landscapes, pathways and issues of different types of disputes. In chapter three we will look at the types of problems that people have, the incidence of such problems and the evidence on how people respond to them.

II.The Basic Models of Dispute Resolution

A.Modes

The examination of different types of disputes in succeeding chapters reveals a range of modes of dispute resolution. Each mode has evolved away from – if it ever existed on its own – the sole paradigm of determination of a dispute by a court, or even under the shadow of the court. We might summarise the current main types of dispute resolution processes in the following three types.

Direct communication and negotiation. There are many policy statements that this is the preferred paradigm in almost all case types. However, it is also clear that some types of disputes involve complexity of law and/or fact-finding, or some people intrinsically need help in analysing, evidencing, arguing or resolving their disputes, such that some external assistance is required.

Communication and negotiation facilitated by a third party. Following on from the previous point, we see a range of third party intermediaries who perform these functions, and also an evolution and shift in their identities. Traditional intermediaries might be private lawyers hired by each party, who can provide a full service involving information, advice, evidence-gathering, arguing a case, advocacy representation in a court, tribunal or other forum, and negotiation of a settlement. A major shift occurred around 2000 when the Woolf reforms of civil procedure redefined dispute resolution policy as being to use ADR as a means of resolving cases and only using the courts as a last resort. Whilst various forms of ADR exist, the mediation technique is the most widely used, and involves a neutral third party facilitating communication between the parties and/or their lawyers, so as to help the parties reach a consensual agreement. Practice varies as between types of disputes as to whether the intermediary acts only as a channel of communication or may actively propose possible solutions. The use of nomenclature can also vary. Those variations are not germane to this inquiry: the important point is the presence of an intermediary who assists but does not decide a dispute. For present purposes, we will use the generic term ‘mediation’.

Major examples of this technique are as follows. ADR services may be purchased from a mediator before or during a case that is proceedings in a court or tribunal. In employment cases, ACAS can provide what it calls conciliation services between employee and employer, and separate mediation services in other circumstances. In family cases, parties are now required to attend a MIAM information session and can use (in most cases at their expense) mediation services from family mediators.

The leading consumer Ombudsmen include mediation as one technique in their process, although it may tend to be more of a facilitation of communication between the parties than the type of mediation that a civil or family mediator might provide. A civil, family, and perhaps employment mediator would typically attempt to identify and resolve emotional tensions between the parties rather than facilitating an agreement that resolves just around money. A public Ombudsman may also use a mediation-style technique in their investigative processes.

The Ombudsmen have some inherent authority, arising from their ultimate ability to make a formal recommendation to resolve a case or for the public Ombudsman to make significant findings on systemic practice of the organisation being complained about, that may inherently assist in achieving resolution of individual cases by agreement, and perhaps to a greater extent than a private mediator, who has no such extended authority.

Decision by a third party. The paradigm here is a decision that is backed by the power of the State that the result imposed is binding under the law and can be enforced through the State’s mechanisms. That is a decision by a court or tribunal. State-backed enforcement also applies in arbitration (as a breach of contract claim), where the parties agree in advance that they will submit their dispute to an arbitrator or arbitration-based ADR body.

A variation on this technique is where a body makes a recommendation to resolve the case. This is the position with most consumer Ombudsmen, and various mechanisms exist under which the recommendation can be made to have legal force or be highly persuasive for the parties’ adherence to it. For example, decisions by the Financial Ombudsman Service are not binding on the consumer unless the consumer accepts them, whereupon they are binding on the financial entity. Recommendations by other consumer Ombudsmen and the public Ombudsmen are not binding per se but trade associations, firms or public entities may either undertake in advance to apply them or there will be significant public and reputational pressure to adhere to them, and the evidence is that adherence is high in many cases.

B.Structures

This cohort of types certainly reveals variety in approaches, not least in the structures and techniques that are used. These are concepts that will recur throughout this study, and the following is a simple summary.

The structures used include:

•A court: a forum provided by the State, backed by coercive powers.

•A tribunal: here meaning a forum provided by the State that has somewhat less formality than courts, and where the decision-makers have specific expertise in relation to certain types of disputes, such as ones involving claims between citizens and the State and employment disputes.

•A website platform: for example, provided by individual or groups of traders, or another intermediary such as Resolver or the European Commission, providing online dispute resolution (ODR).

•A neutral space, without any particular structure, providing for discussions between parties, either in direct negotiation or assisted by a third party. Alternative Dispute Resolution (ADR) exists in numerous structures, ranging from independent mediators to arbitration organisations to specific ADR schemes to Ombudsmen.

•An Ombudsman: an independent intermediary who may either assist in the resolution of individual disputes, and/or undertake systemic reviews of particular issues and provide reports to State bodies or traders.

•Other i...