Introduction
Conflict is one of the many phenomena that characterize a society. It is important to note that it is hard to find a society that exists without conflicts in one form or the other. However, the nature of the conflicts, as well as their intensity, varies from one society to the other. Also, the way societies respond to those conflicts does vary. For example, some societies have put in place elaborate alternative dispute resolution mechanisms.
On their part, others let the conflicts fizzle out by themselves. People will always be engaged in one dispute or another. Due to such phenomena, different societies have come up with various avenues through which disputes can be resolved. While discussing such happenings in society, Gad Barzilai, a scholar in this field, introduces the element of justice as an underlying principle in resolving disputes.
What Barzilai is trying to say is that justice must be seen to prevail when the disputes are resolved. All the parties involved in the dispute must feel that justice was done. The current paper is written against this backdrop. To this end, the author of this paper examines justice systems that are used in resolving disputes in England and Wales.
An effective resolution of conflict ensures that justice prevails. In this regard, Barzilai regards justice as a perception of fairness when it comes to the application of the law. In the context of this paper, disputes are expected to be resolved while ensuring that justice prevails.
As already indicated, both parties should feel that justice was done. It is the only way that the conflict can be resolved amicably. If one party feels that they were treated unfairly, they may appeal the decision or do something else in quest for justice. The element of justice in dispute resolution can be applied in different systems for the main purpose of resolving disputes.
The current paper relies on two justice systems as they are applied as mechanisms of dispute resolution. Justice systems, to this end, take the form of formal and informal systems. Over the years, societies have witnessed an increased preference for informal justice systems over the formal systems.
The former is where the parties resolve the dispute outside the courts. However, in the formal system, parties prefer to resolve their dispute in a court of law. The preference noted in this respect is despite the criticisms leveled against informal systems. The system was developed way back in the 1980s.
The main objective of this paper is to determine whether the criticisms against the informal justice systems are justified or not. The author will focus on the state of affairs in the United Kingdom, particularly in England and Wales. In the paper, the researcher will give an overview of the said critique.
Also, the author will provide an insight into Alternative Dispute Resolution (ADR) as an informal justice system. The conclusions made in the study will be on the advantages of ADR. The author of this paper believes that ADRs are more beneficial compared to formal systems of resolving disputes.
Thesis Statement
It is true that England and Wales are some of the regions that have embraced ADR. However, the situation cannot be described as a troubling disregard of the powerful critique of this form of justice.
A Critique of Informal Justice Systems
Schmitz provides a working definition of the concept of a formal justice system. According to Schmitz, it is a judicial method of dispute resolution that relies on the laid down beliefs and cultures of a given society. The author goes further to explain that the informal justice system relies on the laws that have been enacted in a given society’s constitution. The laws are usually specific to a given dispute.
For example, the laws that govern the resolution of a dispute involving business partners may be different from those governing the resolution of a dispute involving family members. Further, the laws ensure that, depending on the conflict, there is a template of a legal procedure to be followed for a proper resolution. To this end, different disputes may have different mechanisms that are required to be followed in resolving them.
However, the varying realities in different societies, coupled with the differing characteristics of disputes, have created the need for a conflict resolution mechanism that is not in tandem with the laws of the land. That notwithstanding, the element of justice is still relied upon to ensure an amicable solution is realized in response to the conflicts in existence.
Such reasons as the universal right to access justice highlight the importance of relying on the informal justice systems that exist in society. One such instance is, for example, when a dispute arises in a remote village. In such cases, local elders are relied upon to act as adjudicators in resolving the conflict. The elders rely on their wealth of experience and their extensive knowledge of the traditional mechanisms used to resolve conflicts in that community.
It is a fact that many people have made efforts to point out the various benefits of the informal justice systems in attempts to justify their existence. However, these justifications notwithstanding, other scholars have continued to criticize the system over the years.
The critique of informal justice systems relies on the negative attributes that are associated with the same. Pundits believe that for the rule of law to be nurtured in any society, the shortcomings of informal justice systems must be used to advance the formal justice systems.
The critics cite that informal justice systems are not appropriated in addressing issues in societies made up of heterogeneous elements. The implication here is that whereas they may be the preferred mode of conflict resolution at the local level, their applicability is limited. For example, the systems, according to these critics, cannot be extended to societies with more than one ethnic, racial, or tribal community.
In this regard, informal justice systems cannot be used to resolve conflicts between parties that have different backgrounds in terms of ideology, culture, and geography. The reason is that the belief systems of such parties vary according to their social-cultural background.
What this means is that what may be regarded as just by one party may be regarded otherwise by the other party. For example, what a Muslim regards as just may vary from what a Christian who is a party to the dispute regards as an element of justice.
The critique of informal justice systems is extended to the gender composition of the persons adjudicating the dispute. Schmitz points out that most of the informal systems of justice are dominated by males. Females, if any, are very few in such panels. In light of this, an element of bias is created if parties to a dispute are from the opposite sex.
Given that rural settings regard women as subordinate to men, it follows that a dispute involving an accusation on the part of a man by a woman will not be adjudicated fairly.
Perhaps the perception of unfairness is just a figment of one of the party’s imagination, but that is enough to create doubts about the system. For example, if the decisions made are unfavorable to the female party, she may regard them as unfair because of her gender. To this end, the dispute mechanism may be viewed as unsuccessful.
Another factor that is taken into consideration when providing criticism to informal justice systems is the element of human rights. According to Roder, such a situation can be observed in tribal areas where there is a requirement for compensation. To this end, the party who is found to have wronged the other is supposed to compensate them. An example is given in the tribal areas of Afghanistan and Pakistan.
In such areas, there is a practice that is referred to as ‘swara.’ According to the principles that govern this practice, marriages should take place when a member of one family is killed. For example, reconciliation can only be achieved through the marrying off of a lady to the family of the bereaved party. The lady, in this case, is taken from the family was the ‘killer’ comes from.
In such cases, the lady being married off has no say in the matter. Such action is thus regarded as a violation of her human rights to the extent that she has no say in a dispute in which she was not a party. To support their point, critics of this system argue that formal justice systems respect the human rights of an individual. In such instances as those cited above, a proper trial is conducted.
The purpose of such trials is to establish the exact culprits to a conflict. After the trial, a resolution that respects the human rights of both parties is administered. The objective of respecting human rights is to ensure that even though justice can be accessed by persons who are less privileged, such justice should not be ‘substandard.’
The mechanisms of dispute resolution, both formal and informal, must ensure that justice is served without external influences. To this end, the panel adjudicating the conflict should resist pressure and undue influence from parties external to the dispute and who may have vested interests in the outcome of the same.
In light of this, many people assume that formal justice systems can be infiltrated by external factors, such as corruption, in a bid to influence the outcome of a dispute.
However, supporters of this system provide an argument to counter this perspective. Roder argues that both formal and informal judicial systems are subject to human control. Therefore, it would be ill-advised to opt for formal justice systems for the simple reason that the persons regulating it are incorruptible.
While providing a critique of informal justice systems, Schmitz is quick to point out that formal systems of justice rely on procedure and legality for legitimacy. An argument is developed for a case that is set to be adjudicated upon by a formal justice system to the extent that it is required to undergo different stages.
Consider a dispute that revolves around a crime that has been already committed. A successful resolution requires the case to undergo various stages.
In the first instance, the case is introduced in a manner referred to as the initial contact. After that, the matter moves to another stage where the details are investigated to obtain the facts behind the entire case. Upon a thorough investigation, the case enters into a stage that calls for the detention of the suspected perpetrator of the alleged crime. The perpetrator is kept in custody of the law enforcers to set the stage for the next phase.
The suspected criminal is then presented before an adjudicating body. The adjudicating body, in this case, is a court of law. The charges for the crime are then preferred against them. The court provides the opportunity for the case to be heard. During this stage of the case, the accused is presented before the court to respond to the charges. The accused also seeks bail to allow them time to defend their innocence.
The matter is then presented again before a court to be tried against the laid down laws. Barzilai suggests that the case is adjudicated upon properly during this phase to ensure that each side can argue their point.
The outcome of the trial has two sides, where the suspect is either convicted or acquitted. Should they be found guilty of the crimes, the adjudicating body provides for sentencing. However, the process allows for one to appeal if they are dissatisfied with the verdict arrived at in this adjudication process.
The procedural format of most cases gives them legitimacy, given that the process is free from external interference. In this regard, it is assumed that all disputes will follow the laid down procedure to ensure some sense of fairness. However, informal judicial systems do not have a particular procedure that they are bound to follow. The lack of fairness, in this regard, highlights the probable illegitimacy of informal judicial systems.
Given this highly charged criticism of informal systems of justice, a discussion needs to be provided to explain why people still prefer them.
To this end, this paper examines one form of an informal system of justice. The system examined is the Alternative Dispute Resolution (ADR) mechanism. To address this issue, the author of this paper provides an overview of ADR in a bid to explain why there is an increasing disregard to the critique provided.
Alternative Dispute Resolution
Overview
As discussed in the previous sections, there is an increasing shift from reliance on formal justice systems to informal justice systems.
The latter is gaining acceptance owing to the need to have an option when it comes to seeking justice in the event of a dispute. In contemporary societies, disputes, which are also referred to as lawsuits, are usually settled in courts. However, there are several ways through which parties can resolve a conflict. The said options are collectively referred to as ADR.
Although ADRs are considered informal, most of the modern strategies are characterized by professionals well trained to maintain impartiality in a case.
In the context of ADR mechanisms, such persons are referred to as ‘neutrals.’ Mediation happens to be one of the ADR mechanisms. The neutral in this case is referred to as a mediator. Their objective is to ensure that parties to a dispute reach an amicable solution without necessarily having to go to a court of law for redress.
Types of ADRs in England and Wales
Overview
Despite the existence of several ADRs, only a few are selected by parties involved in a dispute. As already indicated, the current study focuses on the United Kingdom. To this end, several ADRs in this region are discussed. According to the Legal Service Commission in Kent, parties settle on an ADR mechanism depending on the nature of the various situations that are addressed.
In England and Wales, the most common situations include disputes that arise between business enterprises and the consumers of the commodities produced. Also, there are conflicts that arise between different companies where the parties opt for ADR.
There are also instances where disputes arise between employers and their employees, but the parties feel there is no need to seek redress from courts. They, too, opt for ADR. Other situations that call for the adoption of ADR mechanisms include family disputes and similar cases between unrelated individuals.
The various categories of ADR in these two regions in the United Kingdom respond to the conflicts outlined above. One item that stands out is the element of modernity.
As an informal justice system, ADR is providing a whole new perspective to the administration of justice. The various types of ADR illustrate that informal justice systems can adapt to the changing times. They are not necessarily bound to elders in a village.
Ombudsmen
In the United Kingdom, citizens are governed by their contributions to the government through taxes. As such, there is a need for accountability.
In this regard, Ombudsman schemes exist to allow the citizens to lodge complaints whenever there are dissatisfied with either public or private institutions. In England and Wales, there are Ombudsman schemes that are enacted through certain laws. There are also Ombudsman schemes which are started voluntarily.
Regulators
Through legislation, parliament authorizes the formation of a body to inspect, license, or enforce certain aspects of the law. However, such bodies are usually independent of the government. Regulators are also known to make referrals where necessary. In some cases, they also offer advice to their clients.
Arbitration
In most disputes, parties resort to the court for adjudication. Arbitration appears to be a mirror of such court processes. Similar to a court process, arbitrations have matters to do with procedure. In light of this, arbitration seeks to rely on evidentiary material to provide a solution to a dispute. However, there is a difference between arbitration and a court process. The difference is that the former is usually a private undertaking.
Mediation
There are cases where parties are embroiled in a dispute that is commercial. They may also be engaged in a conflict based on compensations on medical grounds. In such cases, mediation offers an alternative to a court process. In such cases, the neutral is referred to as a mediator.
Their role is to provide each party with an opportunity to arrive at an amicable settlement to the dispute. At all times, the mediator is expected to avoid bias and offer an independent opinion as a solution to a given dispute.
Neutral Evaluation
Neutral evaluation is another ADR that is preferred over courts in both Wales and England. In this form of dispute resolution, parties present their case to a panel considered as neutral. The purpose of this third party is to examine the case resulting from the dispute between the parties. Consequently, they are expected to provide an unbiased assessment of the case before them. The assessment given is usually non-binding to both parties.
Conciliation
The similarity between this method of dispute resolution and mediation is quite significant. The neutral in this case is referred to as a conciliator. The point of departure between the two mechanisms is in the role played by the neutral. Whereas a mediator attempts to play the role of an advisor in the dispute, the conciliator’s role is more intervention than it is advisory.
Expert determination
The process of dispute resolution can rely on expert opinion on a given subject. For instance, the disputing parties can be business entities that are unable to reach an agreement on certain terms of a merger or dissolution.
In such instances, the parties do not need to go to court. They enlist the opinion of a professional on such matters. Depending on the facts presented before them, the expert applies their professional knowledge to address the impasse.
Neutral fact-finding
There are cases where parties are unable to reach a consensus on what appears to be a technical issue. Similar to expert determination, the services of an expert on the matter are employed. In this case, the expert acts as neutral. However, the point of departure from expert determination is that a neutral expert focuses on the merits of the case. Thus, they are expected to provide an evaluation of the merits of the case.
Mediation and arbitration
In this kind of a dispute resolution, the two ADR mechanisms are applied as explained above. However, in this case, mediation is the primary form of dispute resolution. Arbitration only comes in as some form of appeal if parties are unable to resolve the differences through mediation.
Conflicts Resolved in England and Wales
Overview
In the case of England and Wales, parties have multiple avenues through which ADR is exercised. The categories highlighted above are a testament to the fact that people have multiple reasons to shun courts in a bid to resolve any disputes. However, one can only fully appreciate the applicability of the ADR in the United Kingdom upon the scrutiny of the disputes.
Disputes between business enterprises and their customers
In the present day world, trade is the fulcrum of economic activities in any society. Depending on the commodity produced by a business enterprise, there is bound to be a dispute between the businesses and the consumers. According to Barzilai, such a dispute takes a commercial dimension in which commercial case courts provide an ideal platform for recourse.
An increasing number of such disputes among the Welsh and English are finding solutions through ADR. There are sectors that rely on regulators to handle complaints from consumers. Also, instead of filing a lawsuit with regards to issues to do with standards, consumers can engage the services of experts to provide solutions. One such avenue is through the Citizens Advice Bureaux.
Benefits of ADR
Alternative Dispute Resolution is a phenomenon that is increasingly gaining traction as an avenue through which conflicts are resolved. In the opinion of Schmitz, justice is the underlying principle in any dispute resolution process. When justice prevails, people can derive satisfaction from the process of resolving a dispute. As has already been stated, formal justice systems, like courts, have always been the preferred avenue for dispute resolution.
However, as outlined in the ADR categories in the United Kingdom, informal justice systems are attracting many people nowadays. Therefore, it follows that ADR has several benefits that can support the arguments against the critiques of informal justice systems. The logic is to outline that courts are not the only way to resolve a conflict or a dispute.
Time happens to be the primary factor why parties prefer ADR. Most lawsuits are known to take several years in a court of law for several reasons. The same is not true when it comes to ADRs. Depending on the type of ADR, the process can be concluded in a matter of days or weeks. Also, parties can avert the cost implications associated with lawsuits in terms of court fees and legal charges for the representing counsel.
In a court of law, parties to a suit are given a limited number of times to argue out their side of the story. However, when it comes to ADR, parties are given several opportunities to explain themselves.
The same is advantageous since such participation allows for a deeper insight into the dispute. Also, parties are not bound by the singularity of a court process. The various categories of ADR ensure that parties can select the mechanism they are most comfortable with.
When it comes to a court process, the parties to a suit are often working against each other. Such a confrontational approach makes it difficult for a compromise to be reached. Thus, ADR seems advantageous in the sense that parties tend to cooperate to achieve a solution that is beneficial to both. In this regard, ADR provides the parties with a solution that benefits both of them.
When parties are involved in a lawsuit, it is noted that the process usually takes a toll on their mental and physical faculties. Parties tend to make many appearances in court, which is not the case during ADR sessions. Consequently, parties are strained, which is not the case when it comes to ADR.
The cooperation between parties, minimal costs, speedy resolution, and flexibility makes the process less stressful on both parties. The same explains why ADR is more satisfying compared to other mechanisms of resolving disputes.
Conclusion
In this paper, the author established that the criticism leveled against informal justice systems could not be overlooked in the entire spectrum of dispute resolution. However, ADR, as an example of informal justice systems, has demonstrated that it is possible to resolve conflict while maintaining justice.
Having looked at the various ADR categories applied in England and Wales, there is one phenomenon that cannot be ignored. In all the categories discussed, parties enter into the arrangement without coercion.
The situation in England and Wales is a stark contrast to the criticism previously leveled against informal justice systems. The same should form the basis of disregarding criticisms against informal justice, given that there are improved success rates on dispute resolution with ADR.
Bibliography
Barzilai, G, Communities and law: Politics and cultures of legal identities, University of Michigan Press, Ann Arbor, 2003.
Roder, T, ‘Informal justice systems: Challenges and perspectives’, Max Planck Institute for Comparative Public Law and International Law. vol. 12, no. 1, 2004, pp. 58-61.
Schmitz, D, Elements of justice, Columbia University Press, New York, 2006.