Critically discuss recent judicial decisions regarding the attitude of Essay

Critically discuss recent judicial decisions regarding the attitude of the courts to the settlement of disputes by ADR. Under w - Essay Example While this is the case, the alternative means of settling disputes can be classified into the most commonly used techniques and these tend to be highly reflective of the role of the independent third party. The said third party, in contrast to a judge in a court case, is often involved in the settling of disputes so that they can provide direction to the parties involved so that they are able to find suitable and satisfactory solutions to their disputes. When using alternative means of dispute resolution, the parties involved have much superior control over what they would like to gain from the resolution of the dispute and this control tends to depend on the procedure used in the arbitration. The settlement of disputes through the mediation that takes place between parties is has been found to be the best way to deal with many issues and it is only when intercessions do not work that some other means of reaching a settlement can be considered. It has been found that negotiations are often the best starting point for any form of dispute resolution and while the use of alternative dispute resolution is among the most reasonable means of settling court disputes, it can be said that it is not a requirement for the parties involved to be forced onto the negotiation table.1 An example of this is The Halsey Case of 2004 where a claim was brought by one Lillian Halsey, after her spouse died at Milton Keynes General Hospital as a result of an accident where as he was being fed through a nasal drip, the liquid food accidentally entered his lungs, causing his instant death. The disagreement that arose in this case was based on whether or not the inattention of the caregivers at the hospital was what caused the death of Bert Halsey, and when a post-mortem was conducted, its results were not conclusive since there was a disagreement between the practitioners who conducted the post-mortem over what caused the patient’s death. The lawyers representing Mrs Halsey wante d bereavement damages for their client, and wished to resolve the matter through mediation but this request was refused, since the accused party did not accept any liability, and therefore mediation would be out of place. In mediation, the parties select an independent third party, who will assist the parties to reach an acceptable solution and it is a requirement that the mediator should be an imaginative problem solver and be very much involved in the process of reaching a solution. The mediator will discuss the problem with the parties both together and separately in sessions that are known as `caucuses' and since these discussions are held in private, they should be frank and open, and the mediator will work towards persuading the parties to focus on their underlying interests and priorities.2 The role of the mediator should not be to be there to make judgments but to guide the parties to an acceptable solution and this requires that the mediator take on the role of an honest br oker not that of a judge.3 There are times, however, when mediations may end up failing and the mediator, as a neutral party in the negotiations, may be called upon be the court to give evidence. The Farm Assist case of 2009 is a case in point of such a situation since the court involved denied the application by the arbitrator to reject a summons that required her to provide verification concerning the attempt at conciliation that she had undertaken between the aggrieved parties. The court made the declaration that discretion in all matters of