'Alternative dispute resolution is at the heart of today's civil Essay

'Alternative dispute resolution is at the heart of today's civil justice system, and any unjustified failure to give proper - Essay Example Early 1990s had been witnessing delays in the conduct of litigation in courts exacerbated due to complex procedures and interlocutory battles entailing heavy costs to the parties and the state exchequer as well. As stated by the English Centre for Effective Dispute Resolution (CEDR), British commerce can achieve cost savings of over ? 1 billion by avoiding time spent by the management, spoilt relationships, lost productivity and legal fees.1 Mediation method already has helped save about ? 6.3 billion since 1990.2 In a classical case decided in 2007 involving a claim of just ? 6,000, parties are reported to have spent nearly ? 100,000 as litigation costs. 3 Perceptions about mediation are still mixed as revealed by a survey of the Ministry of Justice in 2007. For 38 % of the respondents, mediation had resulted in cost savings and for 29 %, costs had increased. Those who had settled cases through mediation informed of cost savings except for 7 % of them for whom costs had increased. F or those whose cases could not be settled through mediation, 45 % of them stated cost increases, 19 % cost savings and 28 % did not see any difference in costs.4 Sequel to Lord Woolf’s report, the U.K. Government made it a condition as far as possible to provide for ADR in all government contractual disputes arising out of procurement contracts. 5 As a result, ADR was resorted to in 336 cases out of which 241 were settled with a resultant cost savings of ? 120.7 million. 6 in Royal Bank of Scotland v Secretary of State for Defence, the successful defendant was refused costs as it had not opted for ADR in line with the above said ADR pledge by the Government.7 An audit report of 2007 stated that non-availing of mediation in family disputes entailed additional cost of ? 74 million through legal aid i.e average legal cost for a non-mediated case amounted to ? 1,682 as against ? 752 for a mediated case. 8 Warren K. Wrinkler Chief Justice of Ontario notes with caution that mediati on if not successful ends up as an additional layer in litigation costs. 9 Time efficiency is another factor apart from cost factor. According to a report of the CEDR, in England 75 % of their cases were settled instantly (same day). 10 Mediated family disputes cases are settled faster at 110 days than non-mediated cases which take 435 days to settle. 11 Regardless of cost effectiveness and time efficiency, flexibility available in mediation towards mutually consensual resolution is absent in court led litigation. The English Alder Hey case that involved more than 1000 claims is a classic example of successful mediation that resulted in apology and erection of permanent memorial for the children whose organs had been withheld by the hospital. ADR provides for not only procedural flexibility but also of flexibility of outcome.12 Mediation offers larger number of remedies that include apology, explanation, enduring relationships, and undertaking by one party an obligation without any legal compulsion. 13 In order to have an effective mediation system, the 2008 EU Directive applicable for cross-border disputes states that member states should have legislation that ensures mediation that guarantees a predictable legal framework, provides for flexibility in procedures and ensures autonomy of parties. Besides, the mediation should be conducted in an effective, impartial and competent manner.14 The EU directive adds that it can be applied to internal mediation of the