Alternative Dispute Resolution: Litigation, Arbitration, and Mediation

The provided content highlights the advantages of alternative dispute resolution (ADR) methods, such as arbitration and mediation, over litigation. Arbitration provides more flexibility in terms of procedure and rules, while mediation is a less formal process that encourages parties to reach a mutually acceptable agreement. Both arbitration and mediation offer binding conclusions without the costs associated with litigation. In comparison, trial by judge (court-annexed arbitration) is a more formal process that can be cost-effective for minor criminal offenses. The evaluation concludes that ADR methods are suitable for minor criminal offenses, but each approach has its own pros and cons.

Criminal court
Essay
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Attainment of just verdict in the presence of jury
Jury trial can be defined as legal proceeding in which jury is entitled to provide verdict or
analysis of case facts in order to direct the actions of the judge. Jury is group of random 12
people selected from the public for the hearing of cases. Objective of this approach was to
enhance faith of public in the legal system of England and Wales. Approach of jury system was
established in UK after the completion of Norman conquest (Zander, 2007). It is because; early
functions of jury were quite different from the present environment. Previously, jury merely
acted as witnesses providing sources of information on the local affairs. However, in present jury
is considered as fundamental part of the English legal system.
Jury in UK provides assurance that criminal justice system provide justifiable verdict to
the general public instead of providing benefit to the unjust leaders. For this aspect, jury ensure
that justice system is not abused by political leaders for threatening their opponents. In
accordance with the statement of Lord Devlin, “trial conducted by the jury is more than an
instrument of justice and wheel of constitution (Elliott and Quinn, 2008). It is because; jury acts
as a lamp that shows the freedom lives of just”. Main function of jury to analyse the legal
evidences in order to make appropriate interpretation regarding the case facts. Further, judicial
party provides direction to the jury for the applicability of relevant law in order to reach up to a
justifiable verdict. In criminal cases, verdict of sentencing is provided by judges on the basis of
viewpoints of jury. However, in civil cases, they determine the monetary compensation must be
rewarded in against of damages.
Inclusion of civil person is judicial trial is an effective approach. It is because; trust and
faith of public in justice is increased as they are also involved in the process of trial. Jurors are
assisted by the judicial person due to which provided is supported by legal provisions and
viewpoints of an individual. In addition to this, defendant cannot claim for the unfair just as jury
members belong to general public and they are also satisfied with the provided conviction (Leib,
2007). This process makes less severe trial easy as parties do not have to incur high cost and
time. As per the theoretical approach, jury is not biased because they are not direct part of legal
system and they are controlled by the same. Due to this approach, it is considered that jurors are
completely impartial and they make decision purely based on their opinion. Further, final
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opinion is selected on the basis of voting system. This aspect provides more appropriate decision
in particular case.
Public of England and Wales have great confidence in the legal system as they believed
that cases are fairly tried and justice system is effective. This aspect make reduction in
intervention of the political parties in the legal proceedings. In accordance with the viewpoint of
Loader (2006), twelve heads are better than one. With the availability of 12 jurors there will be
variety of opinions and decision will be provided by the cumulative input. In comparison to this,
single judge will only have single viewpoint and that also will be based on the legal perspective
(Loader, 2006). Further, jury provides their decision on the basis of fact of wrong or right instead
of fact of legal or illegal offence. It is because, defendant can provide better explanation of the
jury in comparison to the court who will judge entire case on the basis of legal perspectives. For
this aspect case of R v Ponting (1985) can be considered. In the stated case, defendant was
accused because he had disclosed the official secrets but in jury trial he was able to justify the
reason of their action that secrets were disclosed for the benefit of nation. Similar example can
be considered in the case of R v Kronlid and Others (1996). In this case defendant had caused
damage to the fighter plane of worth £1.5 million which was proposed to be sold to Indonesian
government (Brookman and Nolan, 2006). However, but he was not held guilty because he was
able to provide justification that plan was proposed to be use for tyrannize the people and same
was acquitted by the jury.
In all situations, Jury are not able to provide justifiable verdict because they do not have
in-depth knowledge of legal provisions. Due to this aspect, they are not able to analyse severe
case facts. In accordance with the case facts of R v Chapman (1974), a deaf juror had provided
the verdict without listening to the case (Hans, 2008). In this case, court of appeal held that juror
is not prejudiced and decision was stood valid. However, after this case provision for qualified
test was introduced in order to assure that juror is able to perform. However, this approach had
lead to the huge financial cost.
Further, there is severe risk of biasness in this system. It is because; jurors are influenced
by facts given in media mainly in situations where a powerful person is involved. This aspect can
be noticed in the case of Madeleine McCann in which both the parents where in suspection for
the murder and abduction of their daughter (Lewis, 2006). In accordance with the viewpoints of
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critics, mass media publications of the unqualified opinions had indirect impact on the jurors and
consequently pre trial opinion was built up in entire situation. Further, this aspect had resulted in
the unfair verdict. Further, study of Doak (2005) shows that 12% of jurors are involved in
scandals for the unjust decision. The other issue that can be highlighted in this aspect is attitude
and mindset of the juror during the process of trial. This aspect shows that jury system is not that
effective in English legal system (Doak, 2005). Further, various criminologist considers it as an
outdated approach.
Above described arguments demonstrates that jury system has its own pros and cons due
to which it is not suitable for all the cases. Individuals have following alternative options for
legal proceeding:
Alternatives approach to the jury system
Arbitration
In this process an arbitrator is appointed by the mutual consent of parties for the purpose
of settlement of dispute. Arbitrator is neutral third party without resorting the action of the court.
Selection of arbitration is generally voluntarily used by parties however in some situations it is
required by law. Rules of arbitration is described by International Chamber Of Commerce (ICC)
and arbitration laws of domestic country. Advantage of this alternative is that it avoids hostility
required in the case of litigation (Gilley, 2013). Parties involved in the process of arbitration are
generally encouraged to participate in the procedure of trial in order to reach at justifiable
conclusion. Procedure of arbitration is cheaper in comparison to the litigation. It is because;
parties are merely required to appoint arbitrator with minor formalities. They do not have to
comply litigation expenses and fees of lawyers.
Process of arbitration is faster than the litigation and it is more flexible. It is because;
process of arbitration is completed as per the needs and convenience of the parties. On the other
hand, in litigation convenience of hearing date is not provided to the parties. Arbitrate contains
more simplified rules of procedure and evidence (Thomas, 2007). Generally, convoluted norms
are not applied in the procedure of the litigation. These procedures are accomplished generally in
private and parties agrees to keep their decision more confidential.
Mediation
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Mediation can be defined as process of settlement of dispute by the active participation of
third party i.e. mediator. In this procedure, mediator provides points of agreement in order to
reach to fair result. This process is different from the proceeding of arbitrator as it is not so much
formal. This alternative is generally used to resolve the domestic disputes such as child custody
or divorce (Tullock, 2005). Process of mediation is beneficial for parties because responsibility
of mediator is assist party in settling their disputes by making use of win-win approach in which
issue of both party is resolved. In comparison to litigation process, mediation is comparatively
less costly. Specialized mediators charged on the hourly basis and this process is completed two
to three hours. Further, preparation of this process is far easier in comparison to litigation and
arbitration.
Similar to arbitration, mediation also provides binding conclusion but without the
payment of cost associated to the binding arbitration. Mediation provides flexibility to parties in
the procedure of hearing (Hans, 2008). Further, it motivates parties to make little compromise.
Due to this aspect settlement reached in the process of mediation is comparatively more
agreeable by both the parties. The most advantageous point of this process is that new mediation
can be schedules if parties are not satisfied by the decision given by mediator. This option is not
available in procedure of litigation and arbitration. It is because; in arbitration and litigation
parties are required to make appeal to higher court in case of dispute.
Trial by judge (Court-Annexed Arbitration)
In this alternative, arbitration is conducted at more formal level. Private lawyer i.e.
arbitrator is appointed by both the parties. This hearing is judged by this independent party who
have sound knowledge of law. They are capable to provide better decision in comparison to the
average jury (Gilley, 2013). This process requires fewer formalities and it is also cost effective.
For minor criminal offences this process is better than litigation. In addition to this, if they are
not satisfied with the decision provided by arbitrator than aggrieved party can make appeal to the
court of law.
In accordance with the above evaluation, it can be concluded that alternatives are suitable
for the minor criminal offences. It is because; in severe criminal conduct both alternative dispute
resolution and jury does not play vital role. Alternative approaches to the trial are beneficial to
cope up with the disadvantages of they jury system. However, in some case jury approach is
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impartial and provides better decisions. This aspect demonstrates that, each approach has its own
pros and cons thus selection of litigation approach will vary as per the situation.
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REFERENCES
Books and journals
Brookman, F. and Nolan, J., 2006. The Dark Figure of Infanticide in England and Wales
Complexities of Diagnosis. Journal of interpersonal violence. 21(7). pp.869-889.
Doak, J., 2005. Victims' rights in criminal trials: prospects for participation. Journal of Law and
Society. 32(2). pp.294-316.
Elliott, C. and Quinn, F., 2008. English legal system. Pearson Education.
Hans, V. P., 2008. Jury systems around the world. Annual review of law and social science. 4.
pp.275-297.
Leib, E.J., 2007. Comparison of Criminal Jury Decision Rules in Democratic Countries, A.Ohio
St. J. Crim. L., 5. p.629.
Lewis, C., 2006. The prosecution service function within the English criminal justice system.
In Coping with overloaded criminal justice systems (pp. 151-184). Springer Berlin
Heidelberg.
Loader, I., 2006. Fall of the ‘platonic guardians’ liberalism, criminology and political responses
to crime in England and Wales. British Journal of Criminology. 46(4). pp.561-586.
Tullock, G., 2005. 18. The case against the common law. The origins of law and economics:
Essays by the founding fathers. p.464.
Zander, M., 2007.Cases and materials on the English legal system. Cambridge University Press.
Online
Gilley, C., 2013. What are the alternatives to trial by jury?. [Online]. Available through
<https://www.quora.com/What-are-the-alternatives-to-trial-by-jury>. [Accessed on 16
December 2015].
Thomas, C., 2007. Diversity and Fairness in the Jury System. [Pdf]. Available through
<https://www.ucl.ac.uk/laws/judicial-institute/files/Diversity-Fairness-in-the-Jury-
System.pdf>. [Accessed on 16 December 2015].
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