By A.J.A. Hadi –
“Hatred never ceases by hatred but by love is healed” – Buddha.
The time and the high costs associated with civil court proceedings are well known. Alternative Dispute Resolution (ADR) is a process of dispute resolution alternative to litigation in courts of law. Dispute resolution has existed even in the oldest legal system of Hammurabi in Babylon (now Iraq) and in ancient Greece. ADR in the form of Conciliation Boards ( Samagi Mandalaya ) were set up in 1958 in Sri Lanka to promote settlement of civil disputes out of the court system. Sri Lanka is now considered to have great potentials to serve as a hub for ADR in Asia and the current government recently took the initiatives to introduce ADR to encourage out of court settlements of civil claims and reduce the ever increasing court proceedings. This is considered a milestone towards modernising the existing colonial civil legal system in the country. Modern legal systems discourage litigants fighting in courts and vigorously encourage them to settle civil disputes out of the legal process. Civil justice system in the United Kingdom was reformed by the Wolf Report (1996) and vigorously introduced pre-action protocols, active case management by court, penalties on parties who unreasonably refuse to attempt negotiation or ADR to discourage prolonged litigation.. Wolf’s pre- action protocols in the UK promote settlement of disputes before even the application is made to court. Sri Lanka still continue to follow the outdated civil procedures and some land partition cases continued for decades. This article is about early settlement of disputes by methods other than court proceedings (ADR) and discusses the advantages and disadvantages of both the court process and the ADR. It explains that mainly civil disputes can be speedily and effectively resolved using ADR. The article identifies the complexities of civil proceedings , high costs and delays in litigation. The article explores how the legislature and the courts can promote peaceful settlement of disputes and conflicts arising between parties. In conclusion the articles recommends the steps the government should be taking to promote ADR in the court system which will result in access to justice within everyone’s reach and minimize the high costs incurred in maintaining the civil justice system in the country.
Disputes arising from conflicts between humans are inevitable in any society and the increase in human conflicts lead disputants to seek legal solutions in court.This will overburden the legal machineries with backlog of unresolved cases. The main purpose of the ADR is early settlement of litigation either before or after commencing court action but before the trial stage. In seeking a solution to the vast increase of court work modern legal systems have found it is more positive to discourage court battles and encourage litigants resolve their dispute out of court. The effectiveness and benefits of peacefully resolving disputes is well documented. Countries like UK, US, Canada, Australia, Singapore have successfully set up ADR into their legal systems. Even countries like India, Pakistan, Malaysia have integrated ADR into their legal systems. Despite the few amendments attempted in the legal system successive governments in Sr Lanka overlooked the importance of introducing changes to modernise the age old civil justice system. Any legal system has to be modernized to meet the different the changes and developments arising in the country and its people. People in Sri Lanka express their feeling of frustration prevalent civil procedure s introduced by the Colonial masters and blindly followed.
Legal experts argue that rigidity, slowness, expenses in civil court cases amount to denial of justice to an aggrieved party who comes before the court seeking justice. Because of the strict procedures and rigidity in the rules of procedure the judges cannot dispose of cases speedily, thus creating backlog of unresolved cases. Prosecuting or defending in civil matters is beyond the affordability of the ordinary litigant who has no knowledge of the law or the procedure. He is compelled to seek advice from lawyers and spend exorbitant professional fees. Legal expenses involve court fees apart from lawyer’s fees and other incidental expenses in litigation. People who cannot afford such high costs give up their democratic right to seek justice. In some countries the state provides financial aid to deserving litigant for litigation in court. Generally, civil cases will require lengthy preparations and professional drafting . Civil actions mainly focus on a trial of the claim which will include calling witnesses and experts to testify before courts. All these will undoubtedly require drafting of particulars of claim, preparation of witness statements, experts drafting complex claims, submissions, trial bundles which an unqualified litigant cannot prepare and comply with. Apart from that the proceedings in civil proceedings contain several strict procedural steps to be taken by parties. The outcome in civil cases is very uncertain and unpredictable given the nature of the strict procedural system. When legal proceedings are commenced in court the parties lose control of their cases and the whole claim and procedure will remain under the control of the court. It is the court that will determine the procedure and direct the way the matter will proceed to conclusion. As parties required to comply with strict civil procedure rules, they will become subject to the court’s control. Such overall control by the court can cause undue delays in determination of a claim by the system.. This can further delay the progress of a case due to the non- availability of legal representatives to advise and prepare documents etc. In Sri Lanka the administration of the court system remains immature and mal- administered that the court system itself can cause undue delay to process the paperwork for a case.
This can cause further problems to litigants , for example, if they do not strictly follow the complex and strict rules they risk application by their opponent to strike out their cases for non-compliance. This puts an unqualified litigant in the court proceedings confused as the procure is very formal involving precise written claims and legal arguments to support the claim. Judges in court apply strict timetables and a claim with great merit can be struck out by the court due to late service of a claim etc. There are strict time limits and steps the parties are required to adhere to, such as pre-trial hearings and applications for directions and the unqualified litigant cannot comply with these directions without the services of legal representatives. In addition the legal system in Sri Lanka is adversarial in its nature which means the parties to the case are represented by lawyers and their sole motive is to argue and advance their client’s case with the only aim of winning and not reaching a settlement. In these situations there is no incentives for litigants to cooperate in achieving a win win situation by both parties. Again it can be argued the courts and its system always are not fair in the way they treat litigants who come to courts for redress. Commercial litigants like the multi national companies and banks have considerable resources at their disposal to litigate and win their cases. . This means such entities can take full advantages of an individual who may not have sufficient resources to fund his case. Commercial litigants who are well aware of these problems, delays , and the expenses which will operate against an individual litigant can take advantage of it. An other disadvantage is court proceedings are held in public and even the press can be present and publish the proceedings which the parties may want to treat confidential..
ADR has different methods to approach the resolution of disputes outside court sysyem. They include conciliation, negotiation, mediation, arbitration and an appropriate method can be applied to resolve a case depending on the nature of the issues in the case. Unlike in court proceedings the parties are at liberty to choose the ADR method for the effective conduct of their case. In contrast to the court procedure the litigant will have the complete freedom in ADR conduct their case. It is the parties who choose their mediator or the arbitrator to conduct the ADR process. When people resort to ADR to resolve their disputes that would free up the court’s time to engage in more important cases. Thus using ADR saves time, money and in the UK judges are now empowered to stay proceedings while urging parties to explore all the possibilities to settle their dispute out of court. However, all civil disputes are not appropriate to be resolved using ADR and some cases cannot be resolved without judicial intervention. When parties resort to ADR there is no court fees involved and parties can present their own claims. Legal representatives are not necessary to represent parties at ADR sessions. For settlement of disputes using ADR parties will have to agree to use ADR and choose mediators of their own choice. They also can reach an agreed outcome for the dispute except in arbitration. In arbitration although the parties will choose the arbitrator the outcome will be determined independently by the arbitrator. In ADR the parties retain control over their case and the way their claim is being dealt with. In ADR there is no hard and fast procedural rules to be followed by parties and and the hearing is very informal. ADR is also a ‘ damage limiting exercise’ and the parties may resume their previous business relationships with each other after reaching a settlement. They can avoid animosity and resume their relationships. ADR sessions are held in private and confidentially between parties and this may be an important factor that if commercial reputations are at risk in litigation.
However, there are also some disadvantages associated with ADR. Parties must agree to use ADR to resolve their dispute and the success of ADR depends upon the willingness of parties to compromise. Sometime one party may not even accept the fact there is a dispute over the issue. They may not be prepared to agree any compromise to their claim. There is no guarantee or certainty in ADR that a resolution using ADR is quicker and cheaper although generally they are. In some cases even negotiations can drag on and become lengthy and expensive without the certainty of a resolution of the dispute. However, in court proceeding there is usually a certainty that ultimately the matter will be determined by court. As referred before ADR is generally cheaper than court proceedings but some arbitration hearing can be complex and expensive depending on the parties and the subject matter of the dispute involving professionally trained arbitrators. Mediators can also be very expensive in some cases. As ADR is confidential and it may not be suitable if one party wants to make a point and send out a message out of the proceedings and its outcome. ADR is also not suitable if one party demands that the other party refrains from doing something immediately because the ADR methods have no judicial power to issue injunctive remedies.
In the UK the Centre for Dispute Resolution has reported that at present there is a growing trend for parties to prefer ADR in civil proceedings which has an impact upon vital state resources and on the effectiveness of civil courts. The article explained that the ADR is not new to the mankind and what ADR is and its advantages and the disadvantages. It further explained the disadvantages of the traditional civil justice system and explored how ADR can be successfully applied to resolve not only commercial disputes but also family disputes such as divorce and custody of children. In conclusion the article recommends that the present government when seemingly restoring the rule of law in the country should appoint a law reform commission as it was done in the UK to inquire into the suitability of ADR in the country and submit its recommendation for serious consideration and introduce necessary changes in the law and procedure. Legislations should be enacted to empower judges to vigorously encourage civil litigants to resort to resolve their disputes using ADR. Since ADR is a new approach to settle civil disputes in Sri Lanka, there may not be adequate number of professionals skilled in ADR, and to remedy this situation training opportunities should be created for those who are interested to learn the skills necessary to serve as ADR professionals . The government should explore all the possibilities country’s potentials to establish Colombo as a centre for dispute resolution in the Asian region.