Impact of Mediation on Legal Education

Question: Discuss about the Impact of Mediation on Legal Education. Answer: Introduction: There are a number of methods that can be used for resolving the dispute arising between the parties. Traditionally, the disputes have been resolved with the help of litigation. Therefore when the method of litigation has been adopted, a party takes recourse to legal action. Under this method, the party produces the arguments related with the law that applies to the facts of a particular case. These arguments are heard by the court and a judgment is delivered by the judge after reading these arguments (Catherine, 1999). As a method of resolving the dispute between the parties, the main feature that is present in case of litigation is that the courts have the purpose of applying public policy and similarly, they also want to ensure the strict adherence of law (Henry and Marriott, 1993). The result is that in case of litigation, less flexibility is available to the judges as compared to other methods of settling disputes out of the court. At this point it is also worth mentioning that there are certain advantages and disadvantages that are associated with litigation, as a method of resolving disputes (Astor and Chinkin, 2002). For example in this case, a class action is going to be brought by a law firm, against What Bank because according to the firm, exorbitant bank fees have been charged from the customers. In this way, there are around 8000 plaintiffs in this case. But What Bank is not willing to settle this dispute as the bank believes that it has a very strong defense available to it. Moreover, the bank is not much worried about the adverse publicity that it will have to face due to the lawsuit. Therefore, the only option left with the law firm is to bring a class action lawsuit against What Bank and adopt the method of litigation. Another method that is available in this case is to resolve the dispute with the help of arbitration. But in order to adopt the method of arbitration, it is necessary that What Bank should be ready to resolve the dispute with the help of this method. Arbitration can also be described as the formal process to resolve the disputes (Bryce, 2007). In case of arbitration, the provisions of Arbitration Act are applicable. When the process of arbitration has been adopted by the parties, the parties to the dispute refer the dispute to a third person. This person is called the arbitrator. Under this method, the arbitrator has to decide the suit according to the principles of natural justice (Raymond and Georgalis, 2003). The procedure of arbitration can vary, depending on the complexity of the issue and also the size of the dispute. But as in this case, What Bank is not ready to settle the dispute in any way, the law firm only has the option to use the method of litigation. In order to deal with the present scenario, the two methods that can be used to resolve the dispute are that of arbitration and expert determination. In case of the process of arbitration, a formal process is adopted for resolving the dispute. According to this process, the parties refer the dispute to a third, independent person. Such person is called the arbitrator (Michael, 2007). Although the parties may decide to change the process of arbitration, depending on the complexity of the subject matter of the dispute but in all the cases, it is necessary to follow the natural justice principles (Legg and Boniface, 2010). The outcome of this process is known as an award. The arbitration award is enforceable in the same way as a judgment delivered by the court can be enforced. The other process that can be used in this case by the parties to resolve the dispute is that of expert determination. In case of this process, the parties can adopt a flexible process. In expert determination, the third-party independent expert deals with the dispute. In this case, the parties agree in advance to be bound by the decision given by such outside expert. Commonly, it has been seen that the method of expert determination is particularly effective in dealing with the cases where the subject matter of the dispute is a technical nature or very complex. Both the processes of arbitration and expert determination have their own advantages as well as disadvantages. Therefore, in case of arbitration, the process is not as costly as litigation and it allows the parties to resolve the dispute quickly as against arbitration (Kenneth, 1999). However it is worth mentioning that the statutory rules are applicable in case of the process of arbitration and the parties are required to follow these rules. On the other hand, flexibility and confidentiality are the two main features of the process of expert determination. Another advantage that is available in case of arbitration is that the dispute can be resolved at a lesser cost and moreover, the arbitrator provides an enforceable determination to the parties. References Astor H and Chinkin C, 2002, Dispute Resolution in Australia, Lexis Nexis Butterworths, Australia, 76 96 Bryce M., 2007 ADR Education from a Litigator/Educator Perspective, 81 St. Johns Law Review 1 Catherine, M. 1999, Moulding of Lawyers: ADR and Legal Education, 17 Windsor Yearbook of Access to Justice 271 Henry B. and Marriott, A., 1993, ADR Principles and Practices, London, Sweet and Maxwell, 273 Kenneth, A. 1999 Impact of Mediation on Legal Education and on the Profession, 17 Windsor Yearbook of Access to Justice 256 Legg M and Boniface, D. (2010) Pre-action Protocols in Australia 20 Journal of Judicial Administration 39, 54 Michael, B. 2007, ADR Education from a Litigator/Educator Perspective, 81 St. Johns Law Review 1 Raymond T and Georgalis, S 2003 Dispute resolution in the changing shadow of the law: a study of parties views on the conciliation process in federal anti-discrimination law , 6(2) ADR Bulletin at 33.