Evaluate the purpose of Alternative Dispute Resolution (ADR) and, with particular reference to the services provided by Acas, assess to what extent it is a successful means of resolving disputes outside the formal judicial process?
Alternative dispute resolution can be termed as a process of resolving disputes without walking into the way of litigation. If the parties to the dispute are in agreement with the award of the alternative dispute resolution then no public court may disregard the award presented or neither they will question the validity of ADR.
It is a new process of dispute resolution where the process takes place outside the court. There are two most popular process of dispute resolution, namely arbitration and mediation. Disputes are resolved through negotiations at the very first attempt. In the process of alternative dispute resolutions an arrangement is created between the parties to meet each other and take voluntary initiatives to settle the disputes among themselves. The main objective and also the benefit of this form of dispute resolution is that it allows the parties to the dispute to reach an amicable settlement through negotiations (Atlas, Huber and Trachte-Huber, 2000).
The process of mediation is also regarded as a type of alternative dispute resolution, where there remain mediators, who are regarded as trained individuals and are efficient in conducting negotiations. The mediators are responsible for arranging a meeting between the parties who are in dispute with each other to settle their disputes and the mediators also takes the responsibility to reach an amicable settlement of disputes among the parties. There are a long range of cases where the settlement of the disputes is done through mediation. Disputes involving investors and stock brokers are generally settled through mediations (Ware, 2001).
Arbitration is considered another process of dispute resolution, which is regarded as process of trial which is simple in nature and involves regulations relating to evidence which in a simplified form. An panel of arbitrators, known as arbitral panel helps in conducting and completing an arbitration panel. The arbitral panel is constructed by the selection of a single arbitrator through mutual consent or through the selection of arbitrators from both ends who will conduct the process of arbitration among the parties. On the completion of the arbitration process the arbitrators or arbitrator provide award, which the decision and if both parties to the conflict are in agreement with the award presented by the arbitral panel then the award becomes binding (Davidson, 2000).
The main purposes of alternative dispute resolution process are to reach a settlement of disputes without the help of the judicial mechanism and also to utilize various methods, which are informal in nature and are related to the judicial mechanisms (Dickinson, 2014). The purposes of alternative dispute resolution also include settlement of disputes through certain independent process that form part of the alternative dispute resolution process such as mediation processes and ombuds offices (Freeman, 1995).
The purposes of the alternative dispute resolution process is regarded as beneficial as the ADR helps in settling disputes in a faster way, it is also regarded as a processes which is cheaper in nature, ADR processes helps in identification of practical solutions to the problems, for settling disputes through ADR the parties are not required to fulfill numerous formalities. The ADR process calls for an amicable solution of the disputes among the parties to the disputes this helps in settling the disputes in an easier way without moving to the court and expending huge fees for trial and at the same time this process helps in maintaining good relationship among the parties as they negotiates with each other (Bevan, 1992).
In this regards it is important to mention the dispute resolution services provided by Acas to maintain employee relations within a concern. At present the cases of employee disputes are higher in number and it has been found that bigger issues are created by smaller conflicts in the workplace and that has become curse for numerous organizations as those conflicts give birth to bigger disagreements among the employee groups or between the employee and the employer groups (Hayford, 2000). This judicial processes of resolving such disputes are time consuming and costly in nature as huge expenses of litigations are incurred by different organizations. Acas plays a major role in settling those disputes through independent and confidential ways and the same will also promote healthy employee relations. Acas has been successful in providing alternative dispute resolution services and controlling conflicts successfully for a long time and it also fetches information, guidance and training that are effective in eliminating any further issues. Moreover, Acas provides advisory services to the management of various concern regarding tackling disputes before they become industrial conflicts, Acas arranges meetings for employees and their employers and also provides essential services to different companies that will lead them to detect issues and mitigate them immediately (Hooker, Usher and Robinson, 2007).
Acas settles two different types of disputes namely, individual disputes and collective disputes. Acas provides guidelines and solutions to cases that would otherwise have been filled in the court of law. Acas provides early reconciliation services to help those cases solve without undergoing any time consuming and costly judicial process. And the parties can avail the services of Acas till the case is filled with the employment tribunal. It helps in settling the disputes quicker and with lesser cost. Acas provides the services relating to reconciliation to both the parties to the dispute, where the conciliators being an independent individual collects the opinions of both sides relating to the dispute and help them in reaching a solution. The parties to the conflict can file the same for reconciliation with Acas before lodging the case to the employment tribunal, Acas takes the responsibility to provide early reconciliation services for a period that can be extended up to a month. There remains a limitation relating to the time of filling the case with the employment tribunal but when the same is lodged with Acas for early reconciliation the limit gets paused. On the completion of the process regarding early reconciliation Acas provides a certificate to both the parties that contain a number (Brenninkmeijer, 2006).
Acas also provides services for settling collective disputes. Collective disputes can be regarded as a situation where there is a conflict existent between employee and employer groups. Acas helps in these situations to resolve the issues between different groups. Reconciliation services by Acas staff who is experienced in this field and the conciliator acts as an independent third party and considers the opinions provided by both the employer and the employee representative and helps to find out the pros and cons relating to the conflict and thereby enabling both the parties to reach an amicable solution (Grenig, 2005).
Acas mostly provides conciliation services for settling collective issues relating to pay, restructuring of businesses, terms etc. Acas helps in solving collective disputes in two different ways, namely, collective arbitration and collective mediation. While conducting collective arbitrations it enables the different parties to the conflict to provide their consent relating to reference for arbitration and at the same the procedure for conducting the arbitration will also be cleared to the parties, Acas takes the responsibility to appoint an independent arbitrator who will provide the arbitral award to the parties in dispute with 21 days of the hearing (Fellas, 2011).
Acas helps in solving disputes among different parties who lacks solution for such disputes through the process of collective mediation also. This is regarded as an entirely voluntary process and is kept confidential. The mediator appointed by Acas takes the initiative to undergo a discussion with the parties to the dispute to identify the main issues and enables the parties to grab a clear understanding relating to the issues and also communicates the ways to solve such issues (Mele, 2011).
While resolving issues among different parties Acas remains impartial and the services can only be offered to different parties if they both generates an opinion to undergo the process of resolution. the conciliation services offered by Acas to settle varied types of disputes is entirely based on the impartiality and ability to maintain confidentiality of Acas (Mele, 2011).
European Union law is regarded as supreme to the laws prevailing in the member states. The EU law precedes the provisions of the constitutional law of its member states and any provision relating to the law prevailing in the member states which are in contradiction with the law of EU will be disregarded straight away (Horspool, 2006). There are numerous cases that has helped to establish the fact that the EU law precedes the laws relating to the member states. It was found in the case of International Handelsgesellschaft case that the provisions of EU law are supreme to the law relating to Germany. Germany is one of the member states of the European Union, an issue evolved that indicated conflict between the community law and the constitutional law in Germany. The verdict given by the German Court was not to involve the laws relating to European Union (Kaczorowska, 2009). In contrary the European Court of Justice fetched its verdict against the German Court and declared that there is no authority of any national court belonging to a member state to review the laws of European Union. And it also declared that no constitution relating to any member state has the authority to assess the validity of the laws relating to European Union.
Another case projected the supremacy of the EU laws over the laws relating to the member states can be regarded as the case of ‘Simmenthal’. In this case the ECJ stated the doctrine of Direct effect of the provisions of the laws relating to European Union upon its member states is an independent source of rights and it should not be dominated by the provisions of any domestic law relating to any member state. This case was regarding the disputes between the Italian government and the legislations relating to the European Union. It was held in this case that where the provisions of domestic law of any member state are in contradiction with the laws relating to the European union such laws must be repealed (Berry, Hargreaves and Berry, 2007). The reason behind this as regarded by the European Court of Justice is that all the member states should be viewed equally in this matter and it is also the essence of joining the European Union by the different member states (Chalmers and Szyszczak, 1998). It was made clear that in order to maintain uniformity among the member states the laws of European Union should lie supreme to the laws relating to its member states. The same thing is applicable in the case of UK also and it was found in another case, which was the case of Factortame (No 2), where it was held by the European Court of justice that it will be the responsibility of a national court to disregard any national law which is inconsistent with the legislations of EU. The case is a land mark case as it has established the fact that the doctrine of Parliamentary sovereignty will not be effective in case of legislations relating to EU.
The above cases simply established the fact that the EU legislation stand superior to any other domestic or national laws relating to any member state. The above cases also projected the declaration of doctrine of Direct effect and it also stated that such powers have been transferred by the member states by entering into agreement to join the European Union that makes its laws supreme. Had there been a constitutional treaty the laws of EU would not have been supreme over the constitutional laws of the member states.
Declaration (No. 17) of the Lisbon treaty once again established the fact relating to the supremacy of the EU laws. It stated that the EU law will prevail if it is conflict with any domestic or constitutional law relating to any member states (Busby and Smith, 2008).
However it can be said that the erstwhile European parliament through the European Communities Act had restricted the right of future parliament in an indirect way to override its provisions, though it is fact that any later act of parliament which has been enacted can override any act that was formulated previously either expressly or impliedly. As per the theory provided by the English Constitutional lawyer, Dicey, a previously enacted act of parliament can be changed by any future act formulated by future parliament. UK formed a part of the European Union in the year 1950 and the European Community Act 1972 gave effect to the duties and obligations of UK voluntarily under the then community and now the same is being performed by the treaties of European Union under the national law. The erstwhile European Communities Act agreed the fact that UK and ECA have intense legal relationship and the same enabled the European Union to form a part of the national law. This clearly states that the European Communities Act acted as a protection covering the parliamentary sovereignty of UK (Jacobs, Corbett and Shackleton, 1990).
UK is a dualist state that implies that no teraties as implied by the government is able to change the laws relating to the state and the same can be done if such treaty is incorporated in the national law. But on the other hand the EU law states that the laws relating to European Union that are believed to have a direct effect, such as regulations and articles relating to the EU treaties will stand incorporated in the national law automatically (Wall, 1973). While there are laws that are not directly applicable to the national law, for those treaties the parliament is provided with power to consider such provisions may or may not be made by the act of parliament. However the case of ‘Metric Martyrs’ has made us understood that the laws of EU are not incorporated in the national law of UK. Lord Justice Laws made it clear in this case that the ECA does not give power to the Court of Justice or any institutions of EU to question the legislative supremacy of the parliament. It was also held in this case that the European Communities Act is a constitutional statute that cannot be changed by any further statutes impliedly. The relationship between UK and the EU is formed on the basis of the national laws (Brautigam, 2007).
References
Atlas, N., Huber, S. and Trachte-Huber, E. (2000). Alternative dispute resolution. Chicago, Ill.: Section of Litigation, ABA.
Berry, E., Hargreaves, S. and Berry, E. (2007). European Union law. Oxford [England]: Oxford University Press.
Bevan, A. (1992). Alternative dispute resolution. London: Sweet & Maxwell.
Brautigam, T. (2007). European Union Law. European Journal of International Law, 18(2), pp.377-378.
Brenninkmeijer, A. (2006). Effective resolution of collective labour disputes. Groningen, The Netherlands: Europa Law Publishing.
Busby, N. and Smith, R. (2008). Core EU legislation. Basingstoke: Palgrave Macmillan.
Chalmers, D. and Szyszczak, E. (1998). European Union law. Aldershot [u.a.]: Dartmouth [u.a.].
Davidson, F. (2000). Arbitration. Edinburgh: W. Green.
Dickinson, D. (2014). Alternative dispute resolution. izawol.
Fellas, J. (2011). International arbitration, 2011. New York, N.Y.: Practising Law Institute.
Freeman, M. (1995). Alternative dispute resolution. New York: New York University Press.
Grenig, J. (2005). Alternative dispute resolution. [St. Paul, Minn.]: Thomson/West.
Hayford, S. (2000). Alternative dispute resolution. Business Horizons, 43(1), pp.2-4.
Hooker, H., Usher, T. and Robinson, D. (2007). Acas helpline survey 2007. [London]: Acas.
Horspool, M. (2006). European Union law. Oxford: Oxford University Press.
Jacobs, F., Corbett, R. and Shackleton, M. (1990). The European Parliament. Boulder: Westview Press.
Kaczorowska, A. (2009). European Union law. Abingdon, Oxon [England]: Routledge-Cavendish.
Mele, C. (2011). Conflicts and value co-creation in project networks. Industrial Marketing Management, 40(8), pp.1377-1385.
Wall, E. (1973). European Communities act 1972. London: Butterworths.
Ware, S. (2001). Alternative dispute resolution. St. Paul, Minn.: West Group.
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