Mediation is more a state of mind than a set of rules and techniques. Discuss. (original) (raw)
This Essay focuses on current civil justice policy in England and Wales and argues that, as a result of trends over the last fifteen years, the value of a public civil justice system is being challenged, while access to that system is being inhibited by both new procedural and funding measures. Accompanied by a profound change in civil justice discourse, the relevant interdependent justice policy strands involve the promotion of mediation and the withdrawal of the state from civil disputes; the removal of legal aid from most non-criminal issues; and a reduction in resources for the courts with fewer full-time judges.
Alternative Dispute Resolution (ADR): A New Key for Implementing Civil Justice in Bangladesh
This paper discusses the emergence of implication and practice of Alternative Dispute Resolution (ADR) for implementing civil justice and to remove suit backlogs in the disputes resolution system of Bangladesh. Bangladesh has rich traditions of common law culture and it reflects in the existing legal system. But due to recent trends of corruption, political deadlocks and some other key obstacles the present mechanism is supposed to unable in resolving a dispute in swift and has been depriving people from the way of implementing and maintaining civil justice. There has seen some objective and subjective factors have led our civil judiciary to a situation where its demerits are ruling over the merits, manifesting in crippling backlogs and delays. This paper highlights on the role of ADR in implementing civil justice, problems and prospects, and statutory provisions of Alternative Dispute Resolution in the trial system. This Article has explored theoretical concerns underlying contemporary appeals to Alternative Dispute Resolution (ADR) in the civil justice system of Bangladesh.
South African Law Journal, 2016
The most common complaint about the current civil justice system in South Africa is that the cost of litigation is prohibitive. Mediation can produce cost-effective results for disputing commercial parties that an arbitrator is unlikely or unable to award or a court would or could never decree, such as an apology or the redrafting of a commercial agreement to take account of changed economic circumstances. Parties in a mediation empower themselves to find their own solution with the assistance, guidance and support of their lawyers who are present as legal advisers rather than legal representatives. The article analysis the role of the lawyer in this context, the limits of adjudication and the possibilities of commercial mediation and the differing core values, roles and processes between the two approaches. The duties of lawyers before and after the process commences are analysed. The potential legal liability of lawyers in mediation is analysed and the role of lawyers as gatekeepers of the process is discussed. Mediation operating in the shadow of the law and its closeness to the justice ideal are the final issues considered. Throughout the piece the author provides commentary on proposals for regulatory and law reform covering this area.
Mediation in Judicial Review: A practical handbook for lawyers
Handbook produced with co-author Varda Bondy. This handbook is intended to address the gaps in legal practitioners’ understanding of how mediation can be used as an alternative to, or alongside, judicial review and to provide practical assistance to those practitioners who are, or who may be, considering mediation as a route for resolving public law disputes, particularly judicial review claims. Includes mediated case studies.
The use of mediation in England and Wales is nowadays an accepted and common practice within the alternative dispute resolution industry. Credited professionals have been performing the duties of a mediator in different fields of legal disputes; however, despite the positive perception of mediation, this area remains unregulated. So far, the rules applying to mediation in England and Wales originate from case law and contract between the parties. Such a scenario is not shared by other countries in which mediation has been regulated through an Act covering either private or judicial mediation. This article examines the current mediation scenario in England and Wales to assess whether there is a need to give it a statutory character in a similar manner to other jurisdictions.
(2014) 1 JOURNAL OF COMPARATIVE LAW IN AFRICA, 2014
"Many legal jurisdictions have realised how judicial bureaucracies and rigidity have left many disputants disenchanted about the entire justice system. This article examines the responses of state governments in Nigeria to the problem of access to justice by looking at the inclusion of the administration of alternative dispute resolution (ADR) mechanisms in the Civil Procedure Rules and the multi-door court system. It looks at the prevalent culture of litigation and its effects on the entire judicial process to understand the importance of amendments to the Civil Procedure Rules. Considering Lagos, Abuja and Kano, the article identifies the gaps in previous rules of the State High Courts in Nigeria and the adequacy of recent amendments to fill these gaps. The paper critically analyses the institutionalisation of alternative dispute resolution and draws out the implications it may have for both the bench and the bar."
Alternative Dispute Resolution: The Democratization of Law?
This paper is, in part, intended to serve as a companion piece to the recent report on rule of law (ROL) 1 published by the Agency for International Development's Center for Development Information and Evaluation (CDIE). The ROL paper noted that alternative dispute resolution (ADR) is fast becoming a seemingly viable and important element of major USAID efforts to reform the legal systems of developing countries. However, project designers and implementers, as well as the CDIE authors, are aware that USAID's knowledge of ADR methodologies, experience, and problems is limited. To that purpose, this paper will focus primarily on issues, problems, and cautions USAID staff should keep in mind when instituting ADR programs and not on whether ADR should be a viable element of USAID's ROL programming. Furthermore, this paper will focus on "formal" ADR programs (formal in the sense of being linked in some way to the legal system). ADR programs and activities at the community level that are not linked to the formal judicial system, as well as traditional forms of dispute resolution, will not be included in this short paper. Though most of the literature reviewed focuses on the ADR experience of the U.S. and other "industrialized" countries, this literature was examined for its relevance to programming in USAID-presence countries. Wherever possible, developing country experience with ADR is integrated into this paper. As an added caution, readers should keep in mind that because most of the literature reviewed on ADR originates from legal articles and law journals-written by lawyers and judges-the literature might have an inherent bias against ADR. Moreover, ADR as a legal mechanism has "matured" to the point that initial and perhaps overenthusiastic endorsement of ADR has begun to be tempered by information that ADR may not always live up to expectations; although ADR has not matured enough to be definitive about its capabilities. Finally, another obstacle to analysis of ADR is that the "absence of records and written opinions makes the pathology of ADR difficult" (Brunet, Np). Thus, most of the literature reviewed on ADR has been focused on theoretical 2
This dissertation will seek to address the civil legal aid crisis in Northern Ireland (Hereafter referred to as NI). It will contend that the current budget is unsustainable and that the proposed reforms are insufficient. It advocates for the use of mandatory mediation in family disputes as a means of bringing civil legal aid spending within budget whilst providing access to justice. It will examine how current family disputes are dealt with and the role of mediation in doing so. It will contend that an escalating rate of disputing is causing more delays on an already overburdened system. This dissertation will include research gathered from Mary Lynch, Director of Mediation NI and Joan Davis Director of Family Mediation NI to demonstrate the high success rates of mediation and will suggest reasons as to why it is being underutilised. The dissertation will argue that mandatory mediation whilst not a panacea has a proven track record and is not, as purist mediators would argue, an affront to the very principles of mediation. It will address the main arguments against its usage and demonstrate that it is a viable option by drawing upon various jurisdictions and their experiences and examine how these could effectively be used in NI.
A CRITICAL STUDY OF ALTERNATIVE DISPUTE RESOLUTION IN HARMONIZING INTER-STATE DISPUTES.docx
Often times we aim to settle disputes through court system or resorting to violence and wars as a way of claiming satisfaction yet we forget that the best way to reach our interest and rights could be through alternative dispute mechanisms like negotiations, mediations, conciliations and arbitrations, thus this thesis aims at showing how states can resolve their conflicts without resorting to wars but also maintaining their good relations.