There are many variations in relation to disputes. Different disputes may have different way of solution.

Alternative Dispute Resolution(ADR) defined in the glossary to the Civil Procedure Rule(CPR) as a collective description of methods of resolving disputes otherwise than through the normal trial process.1 The use of ADR that has been promoted by the CPR which held that the court should manage the cases actively and encouraging the use of ADR. On the other hand, the failure of party to use ADR may be penalised in costs. The tradition of ADR is varying somewhat according to the country and culture. In recent year, taking a systems approach in order to nurture the appropriate dispute resolution, offer different kinds of options to people who are in conflict had been discussed.2 When parties involved in a civil dispute, most of the parties will usually choose to resolve their dispute through a court hearing which the court might include county court, high court and the magistrates court. The county court can deal with a wide range of civil cases, which are handled by a judge or district judge. Such cases are rents arrears, disability discrimination and race cases. While the high court has the power to review the actions of individuals or organisations to make sure that they live under law abiding, it is also deals with civil cases such as arrears of income tax and hears appeals in criminal cases. Besides that, magistrates courts deal by justice of the peace. Normally, magistrates court only deals wit h the cases, which arise in their own state or area.3 Due to many problems in court hearing arise, court hearing does not considered as a best method to settle the disputes. Furthermore, the civil justice system of Lord Woolfs reform shows that alternative mechanism may be more suitable and playing more important role in civil disputes rather than court hearings. Among the problems of court hearings is the
1

Lord Justice Dyson in Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576 (CA) <http://sixthformlaw.info/01_modules/mod1/1_1_civil_courts_adr/1_1_2_alternatives/01_introducti on.htm.>. 2 Alternative Dispute Resolution,<http://en.wikipedia.org/wiki/Alternative_dispute_resolution>. 3 <http://www.adviceguide.org.uk/index/your_rights/legal_system/courts_of_law.htm>.

adversarial process, which is a trial that involves a winner and a loser. Sometime, the outcome may not lead to the most satisfactory for the parties involved those they might be end up enemies and cannot sustain the relationship between both parties after the problem solved. Secondly is technical in nature, the judges cannot understood what is commercial contracts. Thirdly, the formal and complex proceedings are difficult for the parties to understand. Fourthly, due to the lengthy and time consuming in the proceedings, the courts might make the matters worse than before especially in terms of money and time because the case and the increasing costs may be lengthen by the legal representation. Lastly, the proceedings usually open to the public. Because of competitive, the parties who involved may prefer that the details of their financial situation or business practices does not make to the public. Therefore, some business disputes may not available in court hearing.4 For the above statement above, alternative dispute resolution(ADR) provides a satisfactory to formal court proceedings and in exceptional circumstances even lead to the introduction of a new system of law. What are the issues for ADR to provide a better solution than the court hearings? Alternative dispute resolution has two types of historical, firstly, methods that solving the disputes outside the judicial official mechanisms and secondly, methods that attached to the judicial official mechanisms. Generally, ADR classified into at least fifth types. For the main forms of ADR, there are arbitration, mediation, conciliation, and negotiation. 5 The aims of ADR is to avoid the cost, formality, time consuming, adversarial and intimidating nature of trial process. Arbitration is the voluntary submission by the parties of their dispute to the judgment of some person. The arbitrator can be a lawyer or an expert in the field of the dispute. Arbitrators decisions called award. The decision of arbitrator usually legally binding on the
4

Catherine Elliot and Frances Quinn, English Legal System (4th edition, Longman, 2002) 445-447. 5 Types and feature of alternative dispute resolution. <http://en.wikipedia.org/wiki/Alternative_dispute_resolution>.

parties, but it can be challenge in court on the grounds of serious irregularity in the proceedings. The law relating to private arbitration is sets out by the Arbitration Act 1996.6 Hence, arbitration has a statutory basis which the act can only be applies to written arbitration agreements, unlike other forms of ADR. The Arbitration Act 19967 provides that arbitration process should carry out with the principles of natural justice and the arbitrators should give reasons for their decisions. Normally, arbitration often offered as an option in consumer disputes such as package holidays, commercial transactions with one another because there will usually be an express clause and such contract should resolved by arbitration, Scott V Avery,8 and most insurance contracts also contain the arbitration clauses.9 However, ADR is important in solving civil disputes, Dunnett V Railtrack PLC(2002).10 It emphasized that the winning party denied by the costs of an award. Mediation is an informal dispute and non-binding process where a third party acts like a judge but in an out of the court and not actively participates in the discussion.11 It only makes a fair result in those disputes. However, some traditional litigators find it hard to accept although it is very helpful to the resolution process and the trust and probate cases such as divorce cases. The common features of mediation include without a mediator, the mediation cannot be taking place. Besides that, the neutrality and the nature of the mediator state that the mediator should not connected with any of the dispute parties and mediator has no power or authority to make any determination that binds between the both parties.12 The end of the mediation signified if any party decides to withdraw the power and authority from

6 7

<http://www.timesonline.co.uk/tol/comment/faith/article4749183.ece>. Ibid. 8 (1856), 5 H.L. Cas.811. 9 Part I, Arbitration pursuant to an arbitration agreement, general principle <http://www.legislation.gov.uk/ukpga/1996/23/contents>. 10 EWCA Civ 303. 11 < http://biztaxlaw.about.com/od/resolvingbusinessdisputes/a/arbitratemediat.htm>. 12 Henry J.Brown and Arthur L.Marriott, ADR Principles and Practice Sweet&Maxwell,1993) Chp 6.

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the mediator. In the consensual resolution, only will the legally binding contract form when it is under the agreement of both parties. Furthermore, the mediator does not negotiate with the parties in negotiation. However, assist both parties to negotiate with another. In the variation of mediation, the different fields of activity that disputes arise may have their own traditions, culture and ways of dealing with conflict. For example, commercial disputes, civil disputes and claims for breach of duty, issues arising under contracts, industrial and labour disputes, community and neighbourhood issues and international issues. Besides that, voluntary or mandatory mediation, caucusing, shuttle mediation, and disciplinary background of the mediator are also important in the variation of mediation.13

Conciliation is similar to mediation but it takes an interventionist role in the discussions between parties in order to guide the parties to a settlement. The role of the conciliator is more active. In the meantime, the conciliator should act impartial where the parties who involve are responsible for the decision. 14 The successfully of the disputes depends on the skill of conciliator and the willingness of the parties to co-operate. Example of conciliation such as in ACAS(Advisory Council and Advisory Service), the parties do not need to meet, and the conciliator speaks to the both parties separately by phone. This service had been proving very successful. Nevertheless, the criticism of conciliation is the amount paid in settlements is less than been awarded by a tribunal. Besides that, negotiation is the most common types of ADR that can be very confidential and cost effect in the way of settling a dispute. For example, small matters in between consumers and shopkeepers. Both parties may negotiate with each other by either letter or face-to-face. In the meantime, the

13 14

Ibid. <http://legal-dictionary.thefreedictionary.com/conciliation>.

solicitors will try to negotiate both parties at the early stage of the disputes before going to court.15

Sometimes ADR might be difficult for use, because some ADR may work well in some cases and some might not be. For example, employment is for those who involved in workplace dispute, consumer affair is for the complaint of product or service. In Britain, the disputes in employment settled through conciliation or mediation. This is because it can prevent the problem getting worst and help both parties to see each point of views. Besides that, the agreement that negotiated can be wider by choosing conciliation or mediation, because tribunals can only get compensation. Disputes in education, for example, disability discrimination, mediation is more suitable because for such cases, usually is free. However, ombudsman is considering firstly then only mediation being consider, if the relationship between both parties damaged. However, for the disputes in divorce cases, 16 mediation is considering firstly because by choosing court hearing, the process will be more traumatic for those who involve, especially the children. For the disputes in consumer affairs, there are a lot of ADR can be considering, such as ombudsman that is free for consumer, mediation which might be expensive for the consumer disputes but still have some low cost mediation and the trade company usually settle the disputes by using arbitration or conciliation. For the disputes with government bodies, judicial review or ADR can be choosing. Judicial review is a procedure that allows the challenging in the court and the decisions is making by public bodies, ministers or local authorities. Nevertheless, in ADR, complaint to one of the public sector ombudsmen then only the investigating of the problem started is the most common way.

15

Henry J.Brown and Arthur L.Marriott, ADR Principles and Practice (London Sweet&Maxwell,1993) Chp 6. 16 Catherine Elliot and Frances Quinn, English Legal System (4th edition, Longman, 2002) 444.

Every ADR is playing different kinds of role in solving civil disputes. The success of conciliation scheme can be measured by the fact of two to three cases that either withdrawn or solved by the process. However, in employment tribunal, fairness does not applied, which means that the imbalance power is ignore especially when the weak party has no legal representation. Therefore, Dickens 1985,17 suggested that if the conciliation is a neutral and the purpose is trying to help enforce the workers right, the scheme should be more effective with fair settlement rather than settlement at any price. Furthermore, in mediation, divorce cases are depends on the cooperation of the both parties, only the painful of divorce for the family can lesser when communicate calmly through the help of a professional under a neutral circumstance. A study found that eight out of ten couples reached agreement on some issues through mediation and four in ten completed the settlements. However, the Solicitors Family Law Association point out that, women may need lawyers to get a fair deal financially because the abilities to earn limited by the demands of childcare and men usually the main earners in a family.18 In the meantime, in the disputes of trade association and commercial arbitration, National Consumer Council has reported the inefficiency and impartiality of the arbitration. Besides that, most of the companies are choosing arbitration no matter how much the fees is because in court hearings, time and money could waste in explanation of technical point of the judge.

ADR is a solution with more routes to settle the disputes without the tribunals or court hearing. For the advantages, a jury is not involved because juries are always amplify and the judges are unpredictable or make the decision according to the party they like while the both parties are more prefer to get a reasonable solution. Besides that, the expenses of the litigation can be high because the attorney and witness are costly whereas ADR offers the
17

Henry J.Brown and Arthur Sweet&Maxwell,1993) Chp 6. 18 Ibid

L.Marriott,

ADR

Principles

and

Practice

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lesser expenses spent and the disputes can resolved faster than the trial. Thirdly, ADR is speedier and time saving than the tradition court hearing, because trial may take few years before the arguing.19 Furthermore, the results that occurred can be more confidential, because the both parties agreed that the issues that disclosed during the negotiations could not be reuse in the future proceeding and the results is more private than the court hearing due to it is open to public like arbitration. Fourthly, there is more flexibility for the parties to decide the time, date and place of hearing the consultation with the concerned people. In the meantime, the professionals that deal with the parties are usually experienced and trained. According to the experienced, the approach is quicker, spent lower and the results are more satisfied for the parties who involved. Lastly, conciliation and mediation can maintain the relationships between parties that they can avoid the adversarial nature and the win or lose results of court proceedings.20 Whereas litigation forced people to attack each other to prove the wrong of each others and normally, the results will be harmful in government cases and parties will leave with negative feelings. Conciliation and mediation still can identify and clarify the main issues of the disputes even though the settlement is not reach. Here is the creativity of ADR.21 Stubborn For the main disadvantages of ADR, 22 parties without legal representation are disadvantages against the parties who has legally represented like in conciliation. Secondly, there is no legal aid because public funding is not available for ADR. Sometime, arbitration can spent more money and time because when trying to dissolve the disputes by choosing arbitration but still end up by going to court. On the other hand, the right appeal in arbitration is limited which cannot be appealed while the decision of the court can appeal to the high
19 20

<http://biztaxlaw.about.com/od/resolvingbusinessdisputes/a/arbitratelitiga.htm>. <http://biztaxlaw.about.com/od/resolvingbusinessdisputes/a/arbitratemediat.htm>. 21 Henry J.Brown and Arthur L.Marriott, ADR Principles and Practice Sweet&Maxwell,1993) Chp 4. 22 Ibid

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court. Fourthly, in the legal point of arbitration, an unexpected point can be arising in the case that is not suitable for decision by a non-lawyer arbitrator. Lastly, mediator may exceed their role as a neutral and independent party in the discussion. Besides that, the case judged on its merits without the system of precedent that means that no real guidelines provided. In British23, the use of arbitration is clearly greater than the court since the New York Convention 195824 has been growth in using arbitration. Administrative proceedings have become increasingly formal, costly and lengthy resulting in unnecessary expenditure of time and in decrease likelihood of achieving, consensual resolution of disputes; ADR can lead to more creative, efficient and sensible outcome the most effective use of such procedures, will enhance the operation of the Government and better serve the public.25

The U.S congress noted that the traditional methods of disputes resolution in the process such as trials are limited. These methods not only time consuming but also demanding participant attention and energy for a few months up to years. Those people often forced to work together to engage in combat instead bringing them further apart rather than bringing them together. The use of ADR grows rapidly due to its success. There is more than four hundred peoples work in the federal government for full time and funded the budget of ADR programs. In the studies of U.S Portal Service, almost ninety percentages of parties satisfied with their experience in ADR. The example that ADR succeed in government cases was

23

Henry J.Brown and Arthur L.Marriott, ADR Principles and Practice (London Sweet&Maxwell,1993) Chp 4. 24 330 U.N.T.S.(1959)38. 25 Jeffry M.Senger, Federal Resolution Dispute using ADR with the United States government (Jossey Bass, 2004), < http://www.justice.gov/odr/using_adr.pdf>.

Microsoft Litigation 26and Cincinnati

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through using mediation. The first federal ADR

program was created under The Act of 1888, 28 and U.S Conciliation Service created by congress as a part of the newly created Department of Labour to offer mediation and conciliation in labour disputes.

Malaysia is a country that emphasis on harmony consistent with Confucius dissatisfaction towards litigation. He once said: in death avoid hell, in life avoid law courts29 Besides, many religions that have been encouraging the practice of mediation to its disciple. In Islam, mediation refers to the word shafaa,30 while in Hinduism, mediation is

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29

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The Justice Department and a number of states sued the software maker in 1998 for alleged violations of antitrust laws. This case demanded enormous resources from all sides. A dozen Justice Department attorneys worked on the case full time, joined by another dozen who worked on the matter part time. Microsoft was represented by as many lawyers or more. Many lawyers from state attorney generals offices also participated. All sides litigated the case through a trial, an unsuccessful attempt by a judge to settle the matter, and an appeal to the appellate court. After all of this work, the parties appeared to be little closer to reaching an agreement than when the lawsuit began three and a half years earlier. At this point, the parties proceeded to mediation led by an experienced private mediator. After a police officer shot and killed an unarmed nineteen-year-old African American man in 2001. Following the shooting, the city erupted in violence. Protestors set fires, looted stores, and pulled motorists from their cars to assault them. After police had arrested dozens of people and the fire department had made more than fifty runs, the mayor instituted a dusk-to-dawn curfew and called in more than one hundred Ohio State Highway Patrol officers wearing riot gear. Community groups filed a lawsuit alleging discriminatory law enforcement by the Cincinnati police department, and the federal government began an investigation of a possible pattern or practice of civil rights violations. All sides were concerned that a court battle would not solve these problems. No matter which side prevailed, anger and unrest in Cincinnati would likely continue. Instead, the parties decided to turn to mediation to foster increased communication among the people in the city. The mediator met with representatives of the police, civil rights groups, and other community members many times over a period of months. The parties discussed what had happened and how they wanted to move forward. At the end of the process, they agreed to a settlement designed to help reach the goals every- one shared: improving the quality of police services and rebuilding trust among all the members of the community. Although these problems are not easy to solve, most people agree that ADR has been a better way to work on them than litigation would be. Voluntary boards of arbitration that resolved controversies between railroads and their unions to avoid disrupting transportation. Ten years later, Congress passed the Erdman Act, providing for mediation for these disputes. Tanya Kozak, International Commercial Arbitration, Mediation at CIETAC (China International Economic and Trade Arbitration Commission), <http://www.cfcj-fcjc.org/full-text/kozak.htm.>. This means intercession and embraces the concepts of equality and to even up. <http://www.yaNabi.com>.

reflected in the text of its scriptures as well as in the concept of the panchayat. 31 The associations which use the statutory mediation includes Banking Mediation Bureau(BMB), the Housing Buyers Tribunal(HBT) and others. 32 The role of BMB is to prevent the disputes involving loss that not exceeding RM25,000 and settling disputes between the banking institution and their customs. BMB can only complaint against commercial banks and finance companies under the Act of Banking and Financial Institutions 1989(BAFIA). 33 Ministry of Housing set up the HBT under the Act of Housing Development 196634 to solve the conflict over housing matter, whereas the complaints must be purchaser of the house. Besides that, the issues arises in tort is Mediation in Medical Negligence Cases35 state the ability of suing doctor. Another example that does not involve the complicated issue of law is mediation in sport, in lower court and in higher court. Furthermore, Arbitration Act 1952 36 in Malaysia app in domestic and international arbitration. The act only allowed the court to stay of proceeding only if the applicant for the stay is ready to conduct the arbitration. Birmingham was the first place that syaria court begun. Five sharia courts had been set up in London, Birmingham, Bradford, and Manchester, and Nuneaton, Warwickshire. In

Panchayat is a practice in the villages to mediate the problems of villagers. The panchayat is usually comprised of the village head alongside a few other senior members. 32 Dato Cecil Abraham, Alternative Dispute Resolution in Malaysia. 33 <http://www.bankinginfo.com.my/index.php >. 34 This Act is catered to resolve the problems arising between developers and purchasers. Section 16 of the Housing Development Act inter alia provides the following: (a) the various powers to hear complaints; (b) the jurisdiction of the tribunal; (c) the procedure to follow; (d) the remedies of the parties; and (f) the enforcement of remedies. 35 < Http://www.medicalprotection.org/medical/Malaysia>. 36 The Act is in pari materia with the English Arbitration Act of 1950. The other relevant legislation include the Convention on the Recognition and Enforcement of Foreign Arbitral Awards Act 1985. Malaysia is a party to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention). The New York Convention has the force of law in Malaysia by virtue of the Convention on the Recognition and Enforcement of Foreign Awards Act 1985 (the New York Convention Act).
31

the meantime, sharia courts classified as arbitration tribunals under the Arbitration Act 1996.37 Syaria law derives from Quran, Sunnah, Ijma and Qiyas. Most Muslim countries are influence by this legal code. In UK, sharia law is use to govern personal status law, a set of regulations that pertain to marriage, divorce, inheritance, and custody. Sharia law is growing as another way to solve the disputes because arbitration panels allowed to rule according to Islamic law on some issues. There are so many varying interpretations of what sharia actually means that in some places it can be incorporated into political systems relatively easily" 38 Sharia's is highly controversial in the influence on personal, status law and criminal law. Syariah law is more dealing with family and financial disputes. For some example of sharia civil code, testimony of a woman is worth half of a man's and only men have the right to divorce. According to sharia, the sons given twice as much as the daughters by the judges on the panel. Whereas, the daughters would have got equal amounts if the British court were had chosen by the family. In the cases of domestic violence, Siddiqi said that the husbands ordered by the judges to take anger management classes from community elders and no further punishment is given. However, the marriage saved and second chances given to the couples.39 The outcome of sharia court is binding and those who attend with voluntarily, the decision maybe unfair. In Britain, British court seems like unlikely to uphold by them, since sharia law is contrary to British law and public policy. However, in reality, their families often force most women going to sharia courts and adhering to those unfair decisions and
37 38

<http://www.timesonline.co.uk/tol/comment/faith/article4749183.ece>. <http://www.wluml.org/node/6422>. 39 <http://www.jihadwatch.org/2010/07/sharia-courts-in-the-uk-these-privatized-legal-processes-wereignoring-not-only-state-law-interventi.html>.

sometime they may lose their rights under British law. Moreover, threat could be lead if refused to settle the conflict in sharia court. 40 In 1995, Lord Woolf has produced a final report entitled Access to Justice 1996.41 The main problems that he identified with the civil justice were cost, uncertainty of result, inefficiency and complexity. This is because the lawyers controlled the litigation process. The superior of the civil justice system was to deal the cases fairly, the amount of time and money that spent must equitable to the amount of the claim and the complexity of the issues. The provision of civil justice system state that without the existence of the courts and the authority, the fundamental legal concepts cannot develop and most modern legislation designed to reduce the imbalances of power. It also states that, people should have a right of a fair trial for the determination of civil and criminal matters. In the proposal of Lord Woolfs, he state that information should be developed to manage and track cases, the management of the cases should made more actively, the court should stricter the timetables which is different stages of the litigation and simpler procedural rules and many others.42 According not all of the changes applied to the civil justice system, but due to the problem of time delaying and costs growing, some reforms had paved the route for the judicial intervention become more active in the process of the court. Besides that, the Judicial Studies Board ensures that all judges is train, in the meantime, Law Society and the Bar Council offer the training for barristers and solicitors. There are also changes such as time limits where a trial date must set within thirty days and finished the hearing within one day.43 For the conclusion of ADR, most authors thought that ADR would play an important role in the future because it used widely in the US where the law frequently requires parties to try mediation before their case taken to courts hearing. In the meantime, the similar
40 41

Ibid. <http://www.prnewswire.co.uk/cgi/news/release?id=40325>. 42 Kate Malleson, The Legal System(3rd edn, Oxford, New York 2007) 93-94. 43 <http://www.prnewswire.co.uk/cgi/news/release?id=40325>.

expansion in the use of ADR will be accepting by the UK. Besides that, the burden of the court is lesser and many disputes has solved. For example, a breach of a persons right to a fair trail under Article 6 of ECHR 44 in Halsey V Milton Keynes General NHS Trust (2004), 45 the court cannot solve the disputes and have to force the parties to try ADR. Furthermore, the new reforms of Lord Woolf of the civil justice encourage the parties who involved disputes to use ADR. For the contrast, although ADR has their advantages and disadvantages, but at least ADR has more routes to solve the disputes than court trial besides, if ADR is consider whether it should be attempted, and, if so, which form of ADR is appropriate.

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The European Convention on Human Rights (ECHR) (formally the Convention for the Protection of Human Rights and Fundamental Freedoms) is an international treaty to protect human rights and fundamental freedoms in Europe.Article 6 provides a detailed right to a fair trial, including the right to a public hearing before an independent and impartial tribunal within reasonable time, the presumption of innocence, and other minimum rights for those charged with a criminal offence (adequate time and facilities to prepare their defense, access to legal representation, right to examine witnesses against them or have them examined, right to the free assistance of an interpreter).The majority of Convention violations that the Court finds today are excessive delays, in violation of the "reasonable time" requirement, in civil and criminal proceedings before national courts, mostly in Italy and France. Under the "independent tribunal" requirement, the Court has ruled that military judges in Turkish state security courts are incompatible with Article 6. Turkey now adopted a law abolishing these courts in compliance with the Article .Another significant set of violations concerns the "confrontation clause" of Article 6 (i.e. the right to examine witnesses or have them examined). In this respect, problems of compliance with Article 6 may arise when national laws allow the use in evidence of the testimonies of absent, anonymous and vulnerable witnesses. EWCA (Civ) 576.

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