Promotion of ADR in the United Kingdom
In strict contrast to India, recent years have witnessed judges in the United Kingdom for instance taking proactive steps to promote the use of Alternative Dispute Resolutions alongside the formal court system as well. In December 1993, Justice Cresswell came out with the following statement at the sitting of the Queen’s Bench Division(Commercial Court): He emphasized the primary role of the Commercial court which would act as a forum for deciding commercial cases the judges of the court should be wishing to encourage parties to consider the use of alternative dispute resolution, in the form of arbitration, mediation as well as conciliation, which could act as a possible means of resolving specific issues or disputes. The judges will not be acting in the form of mediators or be involved in any kind of ADR process but will in appropriate cases invite parties to be able to consider whether their specific case or certain issues involved in the case, could be resolved by the employing the means of ADR. For instance, he stated, that ADR might be applied or employed when the costs of litigation are potentially going to be completely disproportionate to the amount at stake or in dispute itself.
The exact statement of Justice Cresswell was subsequently reproduced as a Practice Note in the Law Reports. In the month of January of 1995, there was immense pressure on parties to actively consider and employ Alternative Dispute Resolution mechanisms which were henceforth extended specifically in the United Kingdom to all cases in the high court following a further practice which was issued by the then Lord Chief Justice of England and Wales, Lord Taylor of Gosforth:
- It was discussed and reiterated regarding the paramount importance of reducing and decreasing the cost and delay of civil litigation which would make it necessary for judges to set the first instance to be able to assert even greater control over the preparation for the conduct of hearings than has hitherto been customary. Failure by practitioners to be able to efficiently conduct cases economically and feasibly will be subsequently visited by appropriate orders for costs, which would then include wasted costs orders.
- Secondly, the court should and will respectively and appropriately carry out its discretion to be able to limit the discovery, the length of oral submissions, the time that was allowed for the examination as well as cross-examination of witnesses, the issues and concerns regarding which it will be accordingly addressed and lastly reading out aloud from documents as well as authorities.
Among various other notifications, through which it was laid out the essential practice direction which was to be followed. The penultimate portion required that the practice direction also should require a solicitor in a high court action be able to sign and lodge with the court a checklist coupled with answers that would include questions along the following lines-
Regarding the fact that has the client or clients explored with the other parties involved the possibility of resolving this particular dispute or even specific issues through the employment of Alternative Dispute Resolution practices. Secondly, might some form of ADR procedure eventually be able to assist or resolve or even narrow and dilute the issues involved in the particular case. Lastly, has the client or counsel discussed with their respective clients the possibility of resolving the issue through ADR amongst themselves and then subsequently with the other/opposing parties involved.
Source: Harmony Amidst Disharmony- Fali S Nariman