Court hearings are not always the best methods of resolving a dispute and their drawback mean that for cases involved in laws of family, consumer, commercial, construction and employment, alternative methods may be more appropriate. Following Lord Woolf’s reforms of the civil justice system, these alternative mechanisms should play more important role in solving all types of civil disputes.
Alternative methods of dispute resolution have become increasingly prevalent due to the difficulties of attempting to resolve disputes through court hearings. Some of the specific problems posed by the court hearing are mentioned below.
A trial in a court necessarily involves a winner and a loser, and the adversarial procedure with the aggressive atmosphere of court proceedings divides the parties, resulting in them becoming enemies even where they did not start out that way. This can be at disadvantage where there are reasons to maintain a good relationship after the verdict. An obvious example may include divorce and child custody cases.
In small-scale societies with close kinship links, court type procedures are rarely adhered to. Disputes tend to be settled by a negotiation process that aims to satisfy both parties, and thus preserve the harmony of the group.
Some types of cases involve detailed technical points such as details of a Shariah problem, rather than on points of English law. The significance of such technical details may not be readily comprehended by an ordinary Judge. Expert witnesses may have to be brought in to provide guidance on such points. This means that more time will be consumed and costs will be raised.
Where detailed technical evidence is involved, alternative dispute resolution can use someone with expertise in that field to sit as the Judge to decide the case.
In a court hearing, the rules of procedure lay down a predetermined framework for the method in which the problem is to be addressed. This may be inappropriate in areas which are of mainly private concern to the parties involved. Alternative dispute resolution can accommodate the parties to have more influence over the process.
Court hearings impose a solution on the parties without their agreement and which may need to be enforced. If the parties are able to negotiate a resolution between them, to which they both agree, this should be less of a predicament.
Most court hearings are held in public. This may be undesirable in some business or family disputes, where the parties may prefer not to disclose publicly the details of their financial situation or business practices due to competition, or details of their family problems.