Legal System and method Lecture Plus –
Alternative Dispute Resolution
DISCUSSION FORUM QUESTIONS FEEDBACK
Question 1
What are the arguments for and against mandatory mediation?
Feedback
Mandatory mediation is discussed in section 17.5 of the LSM Module Guide.
Students made some valid points when discussing this question on the discussion forum. Some
of the advantages mentioned were that mandatory mediation would keep disputes away from
the courts and helps to clear the courts’ backlog of cases, and it could force the parties to
cooperate and come to an agreement. Some of the disadvantages mentioned were that the
interests of the individuals concerned may not be adequately protected and it may infringe
peoples’ rights, it may actually protract the length of time taken to determine disputes, and
forced ADR may damage the public reputation of ADR.
A good point was made that the courts themselves currently disagree with mandatory
mediation (see Halsey v Milton Keynes General NHS Trust - the Court of Appeal distinguished
between strongly encouraging mediation and mandatory mediation).
Question 2
What is meant by the ‘privatisation of justice’? Do you see this as a real problem?
Feedback
The privatisation of justice is discussed in section 17.7 of the LSM Module Guide.
Most students understood quite well the central issue of justice and dispute resolution being
provided by the private ADR sector rather than by the public court system. Some students took
the view that there is no problem with the privatisation of justices, as at least disputes are being
solved by ADR in a timely and cost-effective manner. Others questioned whether disputes
should be resolved by privately-appointed individuals rather than by the judiciary. The
important point was picked up that the privatisation of justice can lead to fewer legal
precedents being set, which is problematic in the context of the development of the English
common law legal system.
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Question 3
Choose one type of ADR, eg arbitration, mediation, ombudsman etc. You might want to carry
out a brief amount of extra research into your chosen type of ADR. What are the advantages and
disadvantages of this type of ADR compared to the court process?
Feedback
Not many students chose to answer this question, but those students who did so generally gave
good answers, explaining mediation, arbitration and the Ombudsman. Some of the main types
of ADR processes are briefly outlined in section 17.2 of the LSM Module Guide.
Question 4
Discuss the various reasons for the increased use of ADR in civil cases.
Feedback
This question was also not answered by many students, and it would have been good to see
more discussion here. One good answer noted the central importance of the Woolf report on
“Access to Justice” for the increased use of ADR, as well as the resulting Civil Procedure Rules and
costs penalties imposed by the courts for failure to consider ADR under certain circumstances
(see further section 17.3 of the LSM Module Guide). An answer to this question might also
consider in some detail the common law on mediation and the extent to which the courts are
willing to penalise parties in costs for failure to engage in mediation (see section 17.4 of the LSM
Module Guide).
Sample Exam Question 1
“Mediation is no longer regarded as a useful alternative or supplement to public courts, but as
an equal or, indeed, preferable method of handling disputes that increases access to justice.”
Explain this statement and discuss the advantages and disadvantages of mediating civil
disputes.
Points for suggested answer
1. What is mediation?
Mediation involves a neutral third party assisting the disputing parties to reach a settlement and
is used in a wide range of disputes including commercial disputes, family disputes, neighbour
disputes and employment disputes.
2. Problems with the court system
Concerns around delays, costs and the complexity of court proceedings and various forms of
ADR have been suggested as solutions for these problems.
As a result of these problems with the court system, the Woolf reforms (1994-96) heavily
encouraged the use of mediation, as did the later Jackson review.
3. Mediation is also strongly encouraged by the courts.
The case of Cowl v Plymouth City Council (2001) established that parties must consider ADR
(including mediation) before bringing proceedings where public money is involved. The case of
Dunnett v Railtrack (2002) held that if a party had rejected ADR after it had been suggested by
the court, this was sufficient to deny them their legal costs. Other relevant cases from the
lecture, the Module Guide and associated readings could also be mentioned.
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4. Problems with mediation
A significant problem with mediation is that it may offend the principle of open justice
preventing the public from seeing that justice is being done according to law. There are issues
around access to justice and the privatisation of civil justice.
5. Advantages and disadvantages of mediation
Possible advantages:
• Cheaper
• Quicker
• Flexible
• Capable of achieving creative solutions that would not be available in court
adjudication
• Focuses on commercial realities of disputes rather than legal technicalities
• Can repair damaged relationships
• Can reduce conflict
• Is less stressful for parties than court procedures.
Possible disadvantages
• It increases the power imbalances between the parties
• Weaker parties may fare worse than in court
• Focus on problem-solving blurs legal rights
• No concern about the fairness of settlements.
Other potential advantages and disadvantages that are mentioned in the lecture may also be
discussed here.
Note that this is not necessarily a complete answer and there is room for discussion of other
relevant points, and in more depth.
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