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coursework范文:The Concepts Of Alternative Dispute Resolution

时间:2021-08-12 10:12来源:www.ukassignment.org 作者:cinq 点击:
coursework范文-替代性争端解决的概念。coursework课程问题与替代性纠纷解决方案的概念有关。本篇coursework问题还与ADR、CPR 1998和欧盟关于调解事宜的指令之间的关系有关。厄尔斯费里的罗杰勋爵的评论是本课程的重要组成部分。小编提供的coursework范文中,作者将按时间顺序讨论ADR的历史,它与民事诉讼规则(此后为CPR)的关系,它在法院的实施,法官对各种案件的态度及其对欧洲人权法院的影响,特别是在第6条中。法律领域的现状和未来可能的可能性。下面就一起来看一下具体内容。
 
coursework范文
coursework范文
The coursework question is relates with the concept of Alternative dispute resolution. This coursework question is also linked with relationship between ADR, CPR 1998 and EU Directive regarding the matter of Mediation. The comment of Lord Rodger of Earlsferry is a significant part of this coursework. In my coursework I will chronologically discuss the History of ADR, its relationship with Civil Procedure Rules(thereafter CPR), Its implementation in the Courts, Judges attitude on various cases and its impact on European Court of Human Rights (thereafter ECHR) especially in the Art-6. Present situation in legal area and possible probabilities in the future.
替代性纠纷解决(ADR)是试图化解民事纠纷的一种方式。ADR的概念主要产生于负面原因,如对诉讼程序的延迟、成本和不足的不满。这是解决争端而不是诉讼的过程。”最常见的分类是将ADR描述为具有第三方干预的结构化争议解决过程,该过程不会将具有法律约束力的结果强加给各方。”这是一种便利的解决方案,是保密的,不存在偏见。因此,该过程的材料通常不需要向法庭披露[。             
Alternative dispute resolution (thereafter ADR) is a way of trying to melt civil dispute. The concept of ADR arose mainly from a negative cause such as, dissatisfaction with the delays, costs and inadequacies of litigation process. It is the process of resolving disputes in place of litigation. “The most common classification is to describe ADR as a structured dispute resolution process with third party intervention which does not impose a legally binding outcome on the parties.” [1] It is one kind of facilitated settlement, which is confidential and without prejudice. So the materials of the process need not usually be disclosed to a court [2] .
“最简单的ADR形式是调解和调解。一些重要的ADR提供者包括ADR范围内的仲裁,因为它是法院诉讼的替代方案。其他人则排除仲裁,理由是仲裁是一个法律程序,其结果具有约束力。争端各方始终能够将其争端提交仲裁,这是一种比调解或调解更古老、更正式的争端解决方式。”
“The simplest forms of ADR to understand are mediation and conciliation. Some important providers of ADR include arbitration within the ambit of ADR since it is an alternative to litigation in the courts. Others would exclude arbitration on the basis that it is a legal process, the outcome of which is binding. Parties to a dispute have always been able to refer their dispute to arbitration which is a far older and more formal means of dispute resolution than either mediation or conciliation.” [3] 
20世纪70年代,由于商业纠纷诉讼成本高、拖延时间长,ADR的现代发展理念在美国确立。ADR在商业领域发挥着越来越重要的作用,以消除昂贵和严格的对抗性制度的一些弊端。
In the 1970s the concept of modern development of ADR established in the United States because of high cost and long delays of litigating business disputes. ADR was playing an increasingly useful part in the commercial area to dissolve some disadvantages of highly expensive and strict adversarial system.
20世纪90年代末,英格兰和威尔士的民事司法系统经历了一场巨大的革命。特别是伍尔夫勋爵在其庞大的报告《诉诸司法》中对ADR问题产生了重大影响。他的观点在惊人的短时间内被1998年民事诉讼规则和1999年《诉诸司法法》所实施。这些变化在诉讼文化中引入了一个新的维度。
In late 1990s the civil justice system in England and Wales go through a massive revolution. Especially Lord Woolf creates a significant impact regarding the matter of ADR in his enormous report, Access to Justice. His view implemented in a amazingly short time by the civil procedure rules 1998 and the Access to justice Act 1999. These changes introduce a new dimension in the culture of litigation.
在商业纠纷中有不同类型的ADR,如仲裁、调解、调解、监察员等。仲裁、调解和调解是其中最著名的程序。
There are different types of ADR used in commercial disputes such as, Arbitration, Conciliation, Mediation, Ombudsmen etc. Arbitration, Conciliation and Mediation is the most famous procedure from all of them.
仲裁具有法律效力,通常情况下,仲裁员的决定称为裁决,可在法院强制执行,就像法院的判决一样,1996年《仲裁法》第1节介绍了一些关于这一程序的具体规则和条例,如公正的仲裁庭、不必要的延误和费用,调解与调解的概念是相当平行的。在这一过程中,调解人表示,作为回报,他们不会审理此案,但很少有人这样做。这一过程在瑞士是强制性的。
Arbitration has the force of law and generally an arbitrator’s decision called an award which can be enforced in the courts just as a judgment of the court. [4] Section 1 of Arbitration Act 1996 introduced some specific rules and regulations regarding this process such as impartial tribunal, un-necessary delay and expenses. [5] Conciliation is quite parallel with the concept of mediation. In that process conciliators offer in return not to try the case but this is rarely taken up. The process is mandatory in Switzerland.
在英格兰和威尔士,调解是最著名和最被接受的ADR方法。它是快速、无约束力、无偏见和保密的。在这一过程中,调解人充当“中间人”来化解争端,并希望达成和解。调解人必须是中立方。”调解不仅仅是协助无偏见的谈判,保密和特权是调解成功的基石。调解各方需要确保他们在调解中所说的话和为调解而制作的文件不会成为公众的知识,也不会成为诉讼程序中的证据,无论是诉讼、仲裁还是裁决。”选择调解而不是其他纠纷解决方式有多种原因,例如:
Mediation is the most famous and accepted method of ADR in England and Wales. It is quick, non-binding, without prejudice and confidential. In that process a mediator acts as a “go-between” to dissolve the dispute and wants to make a settlement. The mediator must be a neutral party. “Mediation is about much more than just assisted without prejudice negotiations but confidentiality and privilege are the very cornerstones of the success of mediation. Parties to mediation need to be sure that what they say in mediation and documents produced for the mediation will not become public knowledge or become evidence in proceedings, whether litigation, arbitration or adjudication.” [6] There are varieties of reason to choosing mediation over other ways of dispute resolution such as:
A less expensive route to follow for dissolves the dispute. 一条成本较低的解决争端的途径。
It offers a confidential process. 它提供了一个保密的过程。
It offers multiple and flexible possibilities for resolving a dispute 它为解决争端提供了多种灵活的可能性
This process consists of a mutual endeavour. 这一进程包括相互努力。
It takes place with the aid of a mediator who is a neutral third party. 它是在中立的第三方调解人的帮助下进行的。
如果我们分析ADR的整个过程,我们会发现,这个过程中最重要的标准是术语“保密性”。这一条款大大增加了当事人对ADR问题的兴趣。”保密是调解人与当事人之间关系的组成部分,是调解的四个基本和普遍特征之一。它是信任关系的基石,也是调解人和各方之间必须存在的关系。这对当事方的自愿参与和调解人的公正性至关重要。当事人不得认为他们可能因法律程序中使用的任何披露或以任何其他方式使用的任何披露而处于不利地位”,在作业问题中,陈述与调解事项有关。现在我将讨论调解及其与1998年CPR的关系、法院的案例和判决以及欧盟指令的影响。
If we analyse the whole process of ADR then we will find that the most significant criteria of this process is the term “Confidentiality”. This term significantly increase the parties’ interest regarding the matter of ADR. “Confidentiality is integral to the relationship between the mediator and the parties are one of the four fundamental and universal characteristics of mediation. It is the cornerstone of the relationship of trust and that must exist between the mediator and the parties. It is crucial to the voluntariness of participation of the parties and to the impartiality of the mediator. The parties must not feel that they might be disadvantaged by any disclosure that may be used in legal proceedings or in any other way” [7] In the coursework Question the statement is relates with the matter of mediation. Now i will discuss about mediation and its relationship with CPR 1998, cases and judgement of the courts and the impact of EU Directive.
当商业法院法官制定ADR命令时,民事司法没有明确的首要目标。”CPR第1部分现已将ADR确定为实现该目标的法院积极案件管理工具之一。”[8]伍尔夫勋爵对ADR产生了重大影响,尤其是对其改革提案的调解。他的目标在法院中获得了突出地位,获得了新的案件管理权。尤其是在CPR 1.4中。         
There was no defined overriding objective for civil justice when ADR orders were devised by the commercial court judges. “CPR pt 1 has now identified ADR as one of the courts tools of active case management available to achieve that objective.” [8] Lord Woolf provides significant impact on ADR especially on mediation on his reforms proposal. His aim was given prominent status in the courts new case management powers. Especially in , CPR 1.4
CPR1998中包含了一些关于调解或其他争议解决形式的重要规则,如r-1.1(2)、1.3、1.4、3.1(2)(m)、26.4(1)、44等
There are some important rules incorporated in the CPR1998 regarding the matter of Mediation or other form of dispute resolution such as, r-1.1(2), 1.3, 1.4, 3.1(2)(m), 26.4(1), 44 etc
Rules-1.1(2) provides that mater must be dealing with justly manner if it is practicable. There are some element has to be consider in this part such as, parties must be in equal footing, saving expenses, matters must be dealings proportionately, matter must be deal with expeditiously and fairly. [9] Rules-1.3 provides that parties are required to help the court to further the overriding objective. It also provides general duty of the parties. [10] Rules-1.4 provides about courts duty towards the parties where stated that court must further the overriding objective by actively managing cases which includes encouraging the parties to co-operate each other, identify the issues in early stage, helping the parties to settle the whole or part of case. [11] Rules 3.1(2)(m) stated about general powers of management of the courts where court can take any step to uphold and furthering the overriding objective. [12] Rules-26.4(1) stated that parties can request for stayed. Court can grant their request if they think appropriate. [13] Rules-44 provides general rules about the costs of the procedure such as; cost are payable by one party to another, amount of those cost, when to be paid etc. In r-44.3(2)(a)where stated that unsuccessful party will be ordered to pay the costs of the successful party but court can make different order. [14] 
The significant impact of CPR 1998 regarding the matter of dispute resolution could be found in some cases. In the case of Dyson & Field exors of Lawrence Twohey dee’d vs Leeds City Council, [15] Ward LJ stated that matter relates with overriding objective of the CPR and courts duty to manage cases according to rule 1.4 of CPR. He also stated court should encourage the parties. In the case of R vs Plymouth City Council [16] , where Lord Woolf has given more emphasize on CPR and he also suggested that mediation should get the priority over the litigation. So we can say that modern CPR rules create a significant impact on the matter of dispute resolution.
Judges always give emphasize on the matter of ADR in order to save the cost and time. Courts also began to give warnings and issue advice at the conclusion of cases that parties should seriously consider ADR or run the risk of costs penalty. Now i will discuss some relevant cases and judgement which will provide the legal approaches regarding the matter of mediation
In the case of Dyson & Field vs Leeds city Council [17] , Lord Woolf was a member of the CA. The matter was related with mediation where Ward LJ said that court should encourage the parties to use ADR to dissolve their matter and it also should be sooner rather than later. There is another important case which is Cowl vs Plymouth City Council [18] , Lord Woolf has given a lead judgement regarding commercial court ADR order. He delivered powerful comment on both parties failure to use an available ADR process and the delay and cost of violently contested of judicial review proceedings. He also stated that if the parties don’t go for the mediation then it would be wastage of public money.
There are case Hurst vs Leeming [19] , where Lightman J. Stated that alternative dispute resolution is at the heart of today’s civil justice system although mediation is not in law mandatory but its a significant and attractive aspect of civil justice system. There is another landmark case Dunnett vs Railtrack [20] , case regarding the matter of penalty impose for not taking mediation. Mrs Dennett lost her horse because contractors can’t padlock the gate. She sued for compensation but lost in the county court because her lawyer wrongly framed the case. She appealed in person and she gets the permission to appeal. Schiemann LJ suggested for mediation but the Realtrack rejected this offer despite the fact that CA offered a free mediation scheme. CA expressed regret about this. They considered whether Realtrack had made Pt 36 offers. Mrs Dennett was unsuccessful. Then Railtrack asked for their costs but CA made a separate judgement on this cost issue. CA held that Railtrack couldn’t recover their cost because they had refused to participate in ADR.
So judgement of Railtrack case gets lots of controversy because the party faced adverse cost consequences, even they win the trial. Despite this case mediation is not mandatory or nor it should be because part of the mediation process is that the parties should want to come voluntarily in the process. If mediation becomes mandatory then there is a great chance to lose it significant aspect.
In the recent case cost sanction issue raised once again in Halsey v Milton; Steel v Joy (joint Appeal) [21] ,in this case the actual fact was if any party ignoring to mediate the dispute which was requested by an inter-party then cost sanctions should be imposed or not. “Dyson L.J held the court cannot require a party to proceed to mediation against his will as this would contravene art.6 of the European Convention on Human Rights. The court did however; confirm that costs consequences could follow from unreasonable failures to mediate.” [22] But it was not clear whether the court take this point because this point was submitted in the last minute.
On 21 May 2008, the Directive 2008/52/EC on certain aspects of mediation in civil and commercial matters was adopted. Article 1 state the aim of the directive is “to facilitate access to alternative dispute resolution and to promote the amicable settlement of disputes by encouraging the use of mediation and by ensuring a balanced relationship between mediation and judicial proceedings.”Article: 3 of the EU directive provide the definition of mediation as a “structured process whereby two or more parties to a dispute attempt by themselves, on a voluntary basis, to reach an agreement on the settlement on their dispute with the assistance of a mediator.” Article: 5 of the EU directive provide discretionary power to courts to invite the parties to use mediation to settle their dispute. Article: 6 of the EU directive states that a written mediation settlement may be declare enforceable if all the parties agree to the process. Article: 7 of the EU directive provide reasonable support regarding the matter of “guaranteeing the Confidentiality of the mediation process.
The Directives basically suggested the state parties to make the laws to encourage the parties to do mediation by the court, not by compulsion. The directive states, the directive applies to civil and commercial matters, and is intended to promote mediation, and ensure a “sound relationship between mediation and judicial proceedings.” [23] EU Parliament and council agreed the Directive to encourage the use of mediation because it’s a quicker procedure to a civil litigation and cost effective for cross-border commercial disputes.
According to the coursework question now this essay will justify the statement which is provided by Lord Rodger of Earlsferry regarding the matter of mediation.
“Obliging parties to engage in some form of mediation whether as a pre-condition to going to court or as a result of compulsion by the court, seems to be…rather contrary to the spirit of the guarantee in Article 6 of the European convention for the protection human Rights” [24] 
In that above statement he has given more emphasize on present situation of mediation and its application on the Art 6 of ECHR. According to that statement present mediation procedure is quite contrary with the concept of “Right to a fair trial”. ECHR adopted into English Law from 2 October 2000 as a result of the HRA 1998. Art 6 of ECHR is quite interlinking with ADR. Now the main issue is whether the present procedure of mediation is violating the Art 6 of ECHR or not.
Tthe statement of Lord Rodger of Earlsferry is not quite relevant with the present situation of mediation. There are present some reason behind this. Mediation is not a mandatory procedure in our legal system but it has got a special significant aspect after the Woolf reforms 1998.
Mediation agreement often specifically state that, “The referral of the dispute to mediation does not affect any rights that may exist under Art 6 of ECHR. If the dispute is not settled by the mediation, the parties’ rights to a fair trial remain unaffected.” It is true that EU court encourages parties to settle disputes extra-judicially because it will save cost, time, delay etc. In the matter of mediation court can intervene in the process to protect the right to trial such as; if there is any undue pressure upon a party into a non-judicial process. In the case of Deweer v Belgium [25] , the matter related with the debate about whether mandating mediation is permissible or not. Deweer could avoid such proceedings by paying a friendly settlement. He chooses settlement but reserved his right to challenge the proceedings. Then he initiated a challenge regarding the matter of Art 6 of ECHR. “Deweer held to have waived his right to go to court only by reason of restraint which vitiated his consent to paying the friendly settlement.” [26] 
In process of mediation, no one is restrained to settle. Participation is entirely voluntary; any hidden matter of the parties or procedure can’t later be discussed before a trial or elsewhere because of confidentiality. No one ever enters the process on the basis that they must settle or if they don’t that then can’t seek remedy from public court. Mediation is not like the status as arbitration because it totally depends on the parties will. In McVicar vs UK [27] , EU court has held that Art 6 is not infringed by restraint court access to vexatious litigants, bankrupts, mental patients.
In CPR1998 there is lots of provision which should be maintained by the parties before going to any public trial. Before proceeding parties must fulfil some pre-action protocols and practice direction then party must pay court fees at several stages. Parties also need to fulfil other procedural requirement such as; allocation questionnaires, statement of case, disclosure and evidence. In R vs Lord Chancellor exparte witham [28] . The matter regarded breach of Art 6 because of withdrawal of court fees exemption scheme for those on income support. So if anyone doesn’t follow those procedures regarding CPR they will be liable and they may get punishment or imprisonment. So it seems that these CPR requirement doing breaches Art 6 because parties have to maintain some rules and provision against their wish and will. Now if these are not breach of Art 6 then why ordering of mediation would be breach of Art 6. In Golder v UK [29] , it was held that ADR approved in CPR Pt1, where stated a mediation is not breach of such requirements. In Deweer [30] case also confirmed that this dispute process is not breach of Art 6 rights.
Its clear from the Halsey [31] case that mediation must always be voluntary under English Law. Court or judge to order mediation would be a possible breach of Art 6(1) of European convention. If we analyse all of the cases then two significant points would be come out. They are,
Forced by a judge into ADR
Strongly encouraged towards ADR
First approach is likely to violate Art 6, as Halsey confirms. But the second approach is not clear, is immune from challenge under the convention as jack J said summarising in Halsey, ‘the fear of costs sanctions may be used to remove unmerited settlements’ [32] . To distinct between Voluntary and Coerced ADR in this background is hard to draw with certainty. Jack J suggested in Carleton v Strutt & Parker [33] ” A litigant who is landed with an unfavourable costs order for failing to agree to ADR goes to mediation at the courts suggestion but is afterwards stigmatised as failing to participate in good faith, could reasonably claim that this outcome operates as obstruct or fetter on the right of access to the court, contrary to Art 6, and that their apparent consent to ADR was no waiver of their fundamental rights now directly enforceable in English Law under the HRA 1998″ [34] .
The evidence supporting the use of mandatory mediation is mixed. Central London County Court saw a enormous increase in mediations following Dunnett case, but the settlement rate also consistency declined during that period [35] .
If judges apply too much pressure, the overriding objectives of the CPR may not be achieved its goal to lower the settlement rates with wasted cost and time but some pressure is needed to ensure that parties should consider mediation as an option but this pressure is less needed than it once was because the legal profession involved in construction litigation now knows the benefits of mediation. Although many countries those have strong conscious about human rights and constitutional rights introduce conciliation or settlement conference chaired by judges in their legal system. This can be called Courts mandate mediation. So by this process they want to put mediation within court process which would be more acceptable regarding the matter of conventional rights.
In the Halsey case CA held that court cannot proceed a mediation process against the parties will which would be contrary to the Art 6 of ECHR but in the case of Shirayama Shokusan Co. Ltd v Danovo Ltd [36] , court issued a mediation order even though one party was unwilling. CPR r. 1.4(2)(e) emphasised to encourage the parties to use alternative dispute resolution. Sir Anthony Clarke [37] states that “Court has the power to order compulsory mediation and he also said that Halsey decision was a obiter so there was a chance for the judges to make compulsory mediation order.” He also suggested that courts have a jurisdiction to order mediation process under the CPR. Sir Gavin Lightman also expressed his view on behalf of the mediation process.
Sir Anthony Colman [38] states that there is a close relationship between the court and mediation. He also states that mediation process is not mandatory. Lord Philips [39] states that in adversarial litigation there are lots of complications such as; solicitor fees, court fees, defendant is faced with a huge bill for the claimants’ cost and insurance, delay and complex procedure, disproportionate cost etc. According to him ADR is quite reasonable and flexible procedure because it does not have any additional difficulties. He also states that court order to the parties for mediation is not infringe Art 6 of ECHR.
Lord Philips, Sir Anthony Colman and Sir Gavin Lightman are the supporter of mediation process because litigation process has lots of disadvantages and mediation process has flexible, time saving, cost saving and confidential process which is reasonable for the parties as well as for the society. Although EU directives contain some provision where state that court must encourage the parties to use mediation process to settle their disputes. Some cases like Cowl, Dunnett and Halsey cases where maximum of the judges held that parties should use mediation voluntarily rather than mandatory and court always encourage the parties to take this procedure. Although in some cases there was some controversy but different judges has given their views regarding this matter and maximum of them supported the procedure of existing mediation procedure. So at last it can be said that the present procedure of mediation is not obliging the parties but encourages them to further overriding objective of the court.

coursework范文中提到虽然在某些案件中存在一些争议,但不同的法官对此问题发表了自己的看法,其中大多数法官支持现有调解程序的程序。因此,最后coursework范文总结目前的调解程序并没有使当事人承担义务,而是鼓励他们进一步实现法院的最高目标。本站提供各国各专业coursework写作指导服务,如有需要可联系本平台。


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