An Introduction to Alternative Dispute Resolution

Describe the purpose of Alternative Dispute Resolution (ADR) with references to services provided by ACAS?

The process of Alternative Dispute Resolution can be considered as a collection of the processes which can be used for the resolution of various conflicts and other disputes in a more private or casual manner. The entire process of Alternative Dispute Resolution attempts to give a possible substitute for the traditional courts for resolution of disputes (Broadbent, 2009). The resolution of processes includes different complaints and grievances. However, it should also be noted that even though the process of Alternative Dispute Resolution is friendlier process of resolving disputes it cannot replace the traditional practices of the court.

There are a number of reasons for using the Alternative Dispute Resolution method instead of the court processes traditionally practiced. The foremost reason is that this method is far less expensive and easy as compared to the traditional court practice. The number of challenges and the number of formalities involved in the process of Alternative Dispute Resolution is far less and it also promotes the creativeness of individuals and look for even better and viable solutions to the disputes (Hayford, 2000). The Alternative Dispute Resolution process tries to keep away from the volatility which is generally attached to the decisions that is given by a number of decisions of the court as these courts have been following traditional ways to solve disputes that has been followed for a number of years. Also it must be noted that the process of Alternative Dispute resolution usually results in giving these parties improved outcomes and connections with the parties to the disputes so that the parties are able to maintain a better relationship and morale in the workplace (Atlas, Huber and Trachte-Huber, 2000).

In general, there are two types of Alternative Dispute Resolution processes. The first method includes the resolving of the disputes outside the formal judicial process. The second method for alternative dispute resolution is the attachment to the official judicial mechanisms. Some of the other methods available for dispute resolution include programs on mediation or the offices on ombudsman in the organizations. Irrespective of whether the methods are pending, the methods are more or less same having skill sets or sub-sets for negotiations (Briefing: Most GPs are also employers. The Advisory, Conciliation, and Arbitration …, 1997).

Alternative Dispute Resolutions also includes tribunals, processes of mediation, some formal tribunals and formal processes of mediation. The typical form of tribunals in ADR is arbitration where the decision can be either binding or advisory or may also be non-binding (Pareek, 2014). Another typical form is the presence of private judges who either sit alone or in panels or at jury trials. The typical form for mediation is the appointment of mediator or a mediation panel by the court.

The ACAS or the Advisory, Conciliation and Arbitration Service provide service for the alternative dispute resolutions for the people in the United Kingdom. This is a non departmental body that is under the powers of the Crown in United Kingdom.

The Advisory, Conciliation and Arbitration Service

The main objective of this Alternative Dispute Resolution body is to make improvements in the organization and also the work culture. The service further aims to promote and facilitate stronger and more supportive performances in the field of industrial relations (Clark, 2001). The service of Advisory, Conciliation and Arbitration can be done with a number of different mediums and these include the processes of arbitration or mediation or conciliation. It must be noted that the service is most known for the dispute resolving process of conciliation. This process of conciliation includes the resolution of disputes for various groups of workers and employees with the employers. These employees are mostly represented by the trade unions. The ACAS is an independent organization that is also fair and usually it avoids taking any sides for any party and assists them to come to a probable solution for the resolution of dispute.

The service commenced in 1896 when the government of United Kingdom decided to start a voluntary service for arbitration and conciliation. The duties of the service include the giving of free direction for the employers, unions having industrial and personal disputes. Previously, this service was named as Industrial Relations Services in 1960. Later in the year 1972 the name was modified to Conciliation and Advisory Service. Further, in the year 1976, the Advisory, Conciliation and Arbitration Service was transformed into a statutory body in accordance to the Employment Protection Act 1975.

The main services of the ACAS are the promotion of the settlement of claims and the issuance of the employment tribunals. As mentioned earlier this service is more involved in the rendering of conciliation services to the parties. The services here are notified of the claims which are applied according to the services that are provided by the ACAS (Stuart and Martinez Lucio, 2008). The service also reports the various proposals that are to be settled, gives advice to the parties on such matters that is related to the procedures of the tribunals and gives encouragements on the different ways for solving the problems and also listening to the views of others. This process of resolving dispute through conciliation is generally more successful and it focuses on the mind of the parties and their pros and cons of the class. It is further helpful for the people who are not interested to be represented in the traditional court of law.

It must also be noted that the discussions that has been conducted during this service is usually kept private and is also not referred for any hearing of the tribunals until the person for whom the communication is made has consented for the referral. After through the process of conciliation any argument is reached the terms and conditions of the settlement should be made formal by making a legal and binding agreement which involves all the records with regard to the terms for the settlement. The claims before and after are dealt with the appropriate services of ACAS.

The advantages of Alternative Dispute Resolution or ACAS are many. The increase in this form of dispute resolution is gradually on the increase and in the international level it has been integrated formally into the legal system. Some of the advantages of alternative dispute resolution have been listed below (Freeman, 1995).

• Firstly, ADR is more suitable for cases where there is more number of parties.
• Secondly, the process of ADR is more flexible as it is decided by the parties themselves.
• Thirdly, the cost is comparatively lower and less complex procedures are to be followed.
• Fourthly, parties can choose the third parties for negotiations.
• Fifthly, the solutions offered are generally based on the needs and requirements of the parties (Bevan, 1992).
• Further, the entire process is confidential and the agreements are durable.
• And finally, the process assists in preserving the disputes even after the resolution of disputes.

Services of the ACAS

Conclusion

The Alternative Dispute Resolution permits the solving of disputes through a number of ways and primarily through conciliation, mediation and arbitration. All of these methods are preferred by the United Kingdom government and also the well known business organizations when compared with the traditional court processes. The ACAS provides such service that shows that this method of alternative dispute resolution is gradually becoming more and more popular and a huge number of people prefer this mode of dispute resolution (BLANCERO, DelCAMPO and MARRON, 2010). Nonetheless, it also needs to be noted that even though the methods of alternative dispute resolution is preferable, when disputes are not solved in this manner they have to be resolved in the traditional court of law.

The dominance of the European Union laws in the United Kingdom is based on the principle that the laws which are prepared by all the member states together in the European Union would be given preference when any such law conflict with the domestic laws of the country. Therefore, courts in United Kingdom should take into consideration the European Union laws instead of the national laws on the same subject. This principle had arisen from the European Court of Justice and this principle can be observed in a number of decisions of the court (Hartley, 2005).

Regarding the principle that the laws of the European Union should precede there has been court decisions that have supported this view.

This principle has been very apparent since the case of Van Gend en Loos (Van Gend en Loos v Nederlandse Administratie der Belastingen, [1963]) in the year 1963. In this case the European Court of Justice had stated that the European Union is such a community that constitutes a fresh legal order in the international law. It is for the broader benefit of the entire European community that the countries have decided to restrict their sovereignty. Hence this legal order would protect the benefits of the European community. The doctrine of Supremacy does not have a fundamental base in the treaty of European Community and the European Court of Justice formed this legal order. The primary focus of the decision of this case relies on the terms of the direct application and effect. The European Court of Justice mentioned about the legal order since this Union was not any ordinary international organization. This community was considered to be more independent and was supposed to impact profusely on the legal systems of the member states.

The case of R v Secretary of State for Transport(R v Secretary of State for Transport, Ex p Factortame, [2001]) is an example in this regard. The House of Lords decided in the case that when the conditions are such that any act of the Parliament contradicts the European Union laws, it is the duty of the United Kingdom Judicial system to apply the European Union laws instead of the laws of United Kingdom. Lord Bridge had further clarified that this sort of a restriction on the sovereignty had been decided upon and accepted by the Parliament of the country. This restriction even though not inherited from the Treaty of Rome, in the European Communities Act 1972, it was established by the Parliamentary jurisprudence.

Advantages of ADR and ACAS

In another case of Costa v Enel (Costa v Enel, [1964]), the European Court of Justice stated that when the laws of the member states conflicts with the laws of the European Union, the latter would prevail and any other consequent act that is unilateral will not prevail when it is contrary to the conceptual laws of the society. In this regard the treaty of Maastricht may also be mentioned. In accordance to this treaty, no European Union laws can prevent the creation of laws on different subjects that includes work conditions, the socio-political issues or environment. The only thing that needs to be kept in mind is that the laws made need to be well matched with the Treaty of Rome and be in the proper jurisdiction for consideration of the treaty (Konstadinidis, 1998).

Another significant case may be mentioned in this regard. The case of Italian Minister of Finance v Simmenthal (Italian Minister of Finance v Simmenthal, [1978]), is a significant case where the European Court of Justice focused on the predominance of the European Union laws which tend to affect the past as well as the future enactments. In the given case the facts stated that a fee had been charged for health inspections when Simmenthal imported beef from the country of France to his own country Italy. This was according to a law in Italy. This law was however inconsistent with the laws given in the Treaty of European Community and other regulations passed in 1968. During the trial two vital points were raised. The primary point was that the law of Italy should prevail since it was passed after the community regulations have been passed. The second contention was that even though the law conflicted with the treaty obligations, it is not applicable as the law was applied by courts in Italy when it was considered unconstitutional by the Constitutional court in the country. Finally the courts in Italy had to comply with the community provisions and were restricted from applying the provisions which conflicted with the national laws.

The controversies regarding the issue of European Union laws taking over the domestic laws of the member countries have come under scrutiny a number of times. It must be mentioned that United Kingdom is a member of the European Union and hence it is a requirement for the country to abide by the regulations of the European Union.

Primarily these restrictions with regard to the domestic laws first came up with the implementation of the European Communities Act 1972 (Pearson of Rannoch, 2013) and the restriction was voluntarily accepted by all the member states of the European Union (Wiesbrock, 2010). This 1972 Act had mentioned the conditions that the court of United Kingdom has a certain duty while delivering judgment and that is to give more importance to the European Union laws and not the domestic laws of the country.

The laws of the European Union consist of treaties, regulations and also directives. With regard to the regulations, these treaties and directives have dominance over the laws of the country that stands contradicting them. Further the laws also include that the member state will be not permitted to make any more domestic laws in that area for implementing the treaties or directives.

Conclusion

Directives can be defined as that kind of goals which are which can be achieved in a particular span of time. In order to reach that goal the member states can make laws accordingly. The British government is allowed to enter into international treaties binding the country in accordance with the Royal Prerogative. Further, the country also has the doctrine of parliamentary sovereignty. According to this doctrine, no modification exists with regard to the rights of the British citizens or any individuals and such a thing cannot be carried out without the parliamentary consent. In order to change any such act the legislation of the Parliament may be required. Therefore, for the protection of the country from the breach of international rules or regulations it is a must that United Kingdom includes the international treaties and obligations win the national laws of the country.

Conclusion

The United Kingdom needs to override any such law that is contradicting to the European Union laws. The Parliament in Britain presently upholds that the laws of the European Union are ultimate (Wall, 1973). The rule of Dicey may be mentioned in this regard. Accordingly, the European Communities Act 1972 may be repealed at any time. For the theories the laws of the European Union is the one that is ultimate, but logically the internal laws of the country is the one that is ultimate.

References

Atlas, N., Huber, S. and Trachte-Huber, E. (2000). Alternative dispute resolution. Chicago, Ill.: Section of Litigation, ABA.

Bevan, A. (1992). Alternative dispute resolution. London: Sweet & Maxwell.

BLANCERO, D., DelCAMPO, R. and MARRON, G. (2010). Just Tell Me! Making Alternative Dispute Resolution Systems Fair. Industrial Relations: A Journal of Economy and Society, 49(4), pp.524-543.

Briefing: Most GPs are also employers. The Advisory, Conciliation, and Arbitration … (1997). BMJ, 314(7086), pp.3a-3a.

Broadbent, N. (2009). Alternative Dispute Resolution. Legal Information Management, 9(03), p.195.

Clark, J. (2001). Employment Relations in Britain: 25 Years of the Advisory, Conciliation and Arbitration Service. Industrial Law Journal, 30(2), pp.252-253.

Costa v Enel [1964]ECR p.585.

Freeman, M. (1995). Alternative dispute resolution. New York: New York University Press.

Hartley, T. (2005).The European Union and the Systematic Dismantling of the Common Law of Conflict of Laws. International & Comparative Law Quarterly, 54(04).

Hayford, S. (2000). Alternative dispute resolution. Business Horizons, 43(1), pp.2-4.

Italian Minister of Finance v Simmenthal [1978]Case 106/77.

Konstadinidis, S. (1998). Nationality Laws in the European Union. Edited by Bruno Nascimbene [London: Butterworths. 1996. xv + 771 pp. ISBN 88-14-06139-4. £80]. International & Comparative Law Quarterly, 47(01).

Pareek, N. (2014). Enforceability of alternative dispute resolution clauses: position in UK, USA and India. International Journal of Private Law, 7(2), p.175.

Pearson of Rannoch, M. (2013). A bill to repeal the European Communities Act 1972, and to make provision for the Secretary of State to repeal any enactment that has been a consequence of the European Communities Act 1972. London: Stationery Office.

R v Secretary of State for Transport, Ex p Factortame [2001] NO. 7.

Stuart, M. and Martinez Lucio, M. (2008). The New Benchmarking and Advisory State: The Role of the British Advisory, Conciliation and Arbitration Service in Facilitating Labour–Management Consultation in Public Sector Transformation. Journal of Industrial Relations, 50(5), pp.736-751.

Van Gend en Loos v Nederlandse Administratie der Belastingen [1963]Case 26/62.

Wall, E. (1973). European Communities act 1972. London: Butterworths.

Ware, S. (2001). Alternative dispute resolution. St. Paul, Minn.: West Group.

Wiesbrock, A. (2010). Legal migration to the European Union. Leiden: MartinusNijhoff Publishers.