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What are the problems with litigation and how does ADR overcome them? (12 marks)
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What are the problems with litigation and how does ADR overcome them?(12 marks)
When it comes to resolving civil disputes, claimants have several options to achieve
the ideal and best-suited outcome – they do not have to simply rely on litigation
alone. This is because litigation has several limitations that mean that is not always
the best option to resolve disputes between parties. For example, it is very time
consuming – it can take several months for a case to be heard in court and even
longer for judgements to be carried out. Also, it is confrontational and only has one
‘winning’ party, which may lead to a breakdown of relationship between the two
parties and potentially hinder future communication between them. Furthermore,
litigation is public, and high-profile cases have substantial media coverage. Even
though smaller or lesser-known cases do not have as much (if any) media attention,
the courtroom is a public place meaning the trial can be watched by anyone who
would like to. Another challenge is that the process of litigation is expensive,
especially as legal aid can be limited.
However, ADR provides differing solutions to these problems. Some forms of ADR are
specifically designed to preserve positive relationships between parties, such as
online dispute resolution, negotiation and mediation, by introducing another party
(eg a mediator) to help the parties come to an effective agreement. Forms of ADR
offer a more private and informal route to help parties resolve issues, such as
arbitration where the dispute is submitted to an external arbitrator who will make a
binding decision. ADR also allows parties to avoid expensive legal fees, for example
in a tribunal legal representation is not necessary – parties do not require expensive
trained legal professionals to represent the parties as they are given the opportunity
to represent themselves. Additionally, this may allow them to feel more involved in
the process which they may find valuable.
Despite there being some issues with ADR itself, such as the need for good faith
between parties, the fact it may not be legally binding, or the possibility that there
may not be a guaranteed solution, overall it provides a useful alternative to
litigation. On the whole, ADR can save time and money, and can be highly effective
at resolving disputes without the need for parties to go to court.
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