a. Civil justice system (CJS) is a form of private law involving the relationships between individual citizens or organizations . It enables individuals to assert claims against others and have those rights adjudicated and enforced. This system allows one to sue for money damage and receive recovery from injuries. It is an equitable system when individual have been injured or harmed due to another person’s negligence, recklessness, or malpractice . The person who started the case is called “Plaintiff” or “Claimant”, while the person who against the case is known as “Defendant”. The claimant needs to proof the evidence to the court in order to win the case. Contract, torts and property law are the example that can run through CJS. Civil justice system is a place for everyone wills able access to justice and keeps a balance of society. The objective of CJS is to make the dispute more justice. This is because the judges are based on the evident to evaluate and making the conclusion based on both parties facts.
bi. Problem and Complexities of CJS
The first problem of CJS is the parties need to pay a very expensive cost and mostly it is often exceed the value of the compensation . Due to the process of CJS is very complicated, both parties need to employ a lawyer with legal expertise to help them and give advice on evidence. The fees that party need to pay to lawyer is high and lawyer will also base on the duration of civil procedure to charge you more. Besides, when the cases are in CJS, those cases need to spend a very long time to meet the conclusion because the process is too slow . Parties need to wait up to 3 years country court and wait up to 5 years for the high court. CJS has no effective control and enforcement of time limit. Furthermore, CJS is too unequal. There might be having a lack of equality between powerful, wealthy party and the under resources party . Besides, sometime the adversarial process may have some problems. Owing to the process of CJS did not have win-win situation, some of parties will make fake confession and evidence in order to win the case at the end. Not only this, some parties will give witness some benefit, so that the confession of the witness at the beginning and after will be not the same. Thus, the process of adversarial will appear a lot of problem and the time taken of the cases will be longer. You also need to bear the uncertainty of litigation costs due to the uncertainty might be happening. Last but not least, sometime when the litigation is proceeding but the parties are in incomprehensible due to it is very complicated and also the organization is too fragment because of the overall responsibility is not clear for the administration of civil justice.
c. Alternative Dispute Resolution (ADR) is an informal process that settles disputes without litigation. The whole process of ADR is more faster compare to litigation, usually settle within 6 months. It is a private procedure, settle through outside the court and generally less costly than litigation. Most of the parties may prefer ADR proceeding because it is collaborative and allows parties to comprehend each other’s position. There are 3 types of ADR such as mediation, conciliation and arbitration.
Mediation is a party-centered process. It consists of the help of a third party and acts as mediator to help and guide parties reach some mutual acceptable resolution of the dispute toward their own resolution. Mediator is very important in mediation but it has a passive role during the dispute resolvement . Mediators have a goal that was help disputants come to consensus on their own. The role of the mediators is assist parties through communicate with them and listen to both parties . Besides, they need to make sure each of the parties have the chance to talk so that conflict can be lower down . Mediators work together with the parties as partner and help them to find out possible outcome and evaluate the situation. Both parties have the opportunity to describe the issues, discuss their interest, understand each other feeling and explore ideas for the dispute. On the other hand, mediator does not permitted decide the dispute, cannot give any legal advice or personal opinion, have no power to force a settlement and did not have a role in deciding the consequences of the mediation . Furthermore, mediators cannot decide who is right or wrong because the only things of them is finding a solution that everyone can accept with, not making any judgment . They try to help both parties to come out a resolution that is sustainable, voluntary and nonbinding . According to the data in United State, the overall success rate of mediation is always 85% and above, which are year 2010: 89%, year 2012: 90%, year 2014 86% and year 2016: 86% . This shows that the parties who using mediation process can mostly get the good result that they wanted.
Conciliation is a process that is very similar to mediation whereby conciliators try to facilitate a settlement between parties. It is an alternative out-of-court dispute resolution instrument and involves neutral third party. Conciliation is used labor dispute before arbitration and also takes place in many areas of the law. Conciliator need to communicate with both parties who are having a dispute and aim of achieving a settlement or resolution. Conciliation is same as mediation because both of them are voluntary, flexible, confidential and interest based process. The parties seek to reach an amicable dispute settlement with the assistance of the conciliator, who acts as a neutral third party. The conciliator may have to have some professional knowledge or background in dispute. Mostly they will generally provide some advice on the fact and option for resolution. During conciliation, the conciliator will be asked by the parties to provide them with a non-binding settlement proposal. However, conciliator cannot make any decision for your parties or decide who is right or wrong and also avoid provide counseling. Conciliation may be voluntary, court ordered or required as part of a contract. It is often part of a court or government agency process.
Arbitration is a more formal and structural process compare to mediation and conciliation without using the court. It is also a traditional method for resolving legal dispute. A neutral person called an “arbitrator” hears argument and evidence from both side of the parties and then he or she will decide the consequence. It is a system of private justice, not a court proceeding but similar to court because arbitrator has the authority makes a binding decision at the end of the session. In binding arbitration, the final decision of the arbitrators can be agree by the parties and there is no right to appeal. In nonbinding arbitration, the parties may request a trial if they do not accept the arbitrator’s decision. The decision made by arbitrator is called “award” and is legally binding on the parties. The examples of arbitration dispute are properties, businesses, contract and family and the examples of non-arbitration are criminal and charity. In Malaysia, the people who used the method of arbitration are increasing and it becomes more popular for commercial dispute resolution. The outdated 1952 Arbitration Act is replaced by 2005 Arbitration Act. It increases the public confident of the arbitration process.
di. Contribution of ADR
The most important that why to choose ADR process is because of its time and cost is more efficient that litigation . In litigation, it needs more than 2 years to complete the whole dispute but ADR just need 6 to 9 month to settle the whole dispute. While the time taken did not reach huge time, it also means that the costs that you need to pay are less. Moreover, parties can ensure the expertise of the decision maker. They can hire the decision maker base on their preference either he has that background of the knowledge. The third advantage of ADR is it can ensure party autonomy. Because of ADR is a private nature, parties will have more opportunities to control the way of the dispute and solve it base on their preferences . The parties can choose the decision maker for their dispute but litigation cannot. They also can select the applicable law, place, time, language, structure and content of the proceedings. If party autonomy can be increased, it can speed up the speed of the whole process . Thus, it will be more efficient for their dispute and also they can save their costs. In addition, both parties will get the win-win situation when using ADR process. In litigation, the court may let one of the party give compensation. But in ADR, both parties can communicate and find out the outcome that may let both parties satisfied. No win and no lose will happened in ADR process. ADR also give you an opportunity to discuss the strength and weaknesses of your case in confidential with an independent mediator and help you reach the case more effectively . On the other hand, most trial and related proceedings are able to open to the public and media. Last but not least, ADR can reduce conflict between both parties. This is because the outcome of the dispute is based on the agreement of both sides. If the proposal that the third party gave is not suitable, both parties have the abilities to reject until both sides agree. At the end, they might continue their relationship after dispute.
dii. Limitation of ADR
Everything has a good side and bad side. ADR also has several disadvantages. In ADR, it may not reach the desired outcome of the case and does not lead to a resolution, except arbitration but at the end it still needs to end up with court litigation . This means that you still need to invest your time and money in trying to resolve the dispute out-of-court and still end up having to proceed with litigation and trial before a judge or jury . Besides, arbitrations are final. Once the arbitrator decides which side win or lose, the parties may not be appealed. The court will mostly follow the arbitrator’s decision to close the cases. In mediation, it does not have a formal rule for the process. If both parties did not employ a mediator who have that particular knowledge, this lack of formal rule might make the result into impasse. If both parties cannot accept the consequence or compromise, the process can end in failure. Furthermore, the fairness of the settlement is very hard to define to both parties. If the third party get more information and resources from one side or more understand about the process of ADR, he or she might get the other party to agree the settlement. Moreover, the failure of ADR will be very costly . The case of Thakkar v Patel (2017) shows the failure of mediation . The plaintiff was sued the defendant about claim back his money. At the beginning, both of them are been positive about mediation, but defendant accidentally failed to engage with the ADR process without a good reason. Thus, they need to continue with the court proceeding. If this case can be settle in mediation, the defendant can save roughly £300,000 because the parties’ offers were only £10,000 apart and costs were disproportionate to the claim . Besides, the case may not reach the desire outcome. This is because both parties need to be more think to other side in order to reach a very suitable method that both parties need to make a concession. This will make that both parties cannot take the benefits in maximum. Last but not least, facts may not be totally disclosed compare to litigation . Owing to ADR did not same as litigation, sometimes there is a risk that the parties may resolve a dispute without knowing all the facts, which may lead to a wrong decision .
e. Recommendation for improvement
In my opinion, civil justice system and alternative dispute resolution still need have some improvement because nothing is perfect. In civil justice system, it needs reducing the costs and also the time taken. The litigation needs to increase the consistency and fairness of the outcomes and also increase the litigant in order to speed up the process. Technology become advance nowadays so civil justice system should use those technical in order to achieve a high effectiveness service and have a justice result. Besides, due to the process of civil justice system is complicated and most of the parties cannot really understand. Hence, the court needs to make the process become more convenience for litigants by simplifying the process and also provide the on-demand court assistance services.
In Malaysia, alternative dispute resolution is not common used compare to United State, especially conciliation and mediation. The government of Malaysia should encourage and promote the alternative dispute resolution in order let many people know about the process of alternative dispute resolution. Moreover,
Civil justice system and alternative dispute resolution have their strong advantages.