Access to Justice

Winkler (2007) notes that “Access to justice, as a fundamental principle of the civil justice system, dictates that problems of cost, delay, judicial economy and proportionality must become more prominent in our approach to delivery of legal services”. Although the courts are an indispensable part of the justice system, access to justice could be restricted if the courts were the only means of resolving disputes. It is therefore important that any justice system includes an array of options for resolving disputes. ADR has the potential of extending access to justice to disputants who are unable, possibly due to lack of resources, to take the litigation route.

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While the variety of options presented by a justice system incorporating both litigation and ADR is desirable, it still raises questions as to whether access to justice is really available for all parties especially given that the Law Society (2008) raised concerns that there still remains, significant areas of unmet legal needs in Ireland. Indeed, it could, be argued that a two-tier justice system is in place; one for those who can afford all options and one for those who cannot.

Furthermore, while some disputants may be content with the outcomes available in ADR, some disputants may feel the “need” to go to court to resolve their dispute, however due to the cost of doing so, cannot afford to, these disputants may either give up or settle for an outcome in ADR which they otherwise might not have contemplated.

3.4.8 Power

The balance of power is a concern in the design of dispute resolution systems, as Teague (2007) notes “The underlying assumption is that, to be effective, conflict resolution systems must win the confidence of both employer and employee”. In terms of the employment relationship there is a longstanding belief that there is an imbalance of power between employers and employees, giving the employer an unfair advantage (Hogbin, 2006). In addition, employers, particularly large organisations, tend to have greater access to resources which gives them a distinct advantage over the employee. As was noted earlier, litigation can be both a costly and lengthy process, thereby those with the greater resources are likely to hold the balance of power. In contrast, parties who opt to use ADR processes tend to resolve disputes both quicker

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and at a lesser cost thus creating an environment where both parties can be viewed as equals.

Finally, in what is known as the repeat player phenomenon, Galanter (1974) distinguished between experienced “repeat players” and inexperienced “one shotters”. Galanter established that the frequency of interaction with the legal system had an influence on the outcome of cases. In terms of employment disputes, employers could be viewed as the “repeat player” as they are more likely than individual employees to have had previous dealings with legal institutions or the various employment tribunals. The repeat player is also present in ADR. In a study of the repeat player in employment arbitration cases, Bingham (1997) found that employers who repeatedly used arbitration had a greater chance of winning than those who used it once. Although the

“repeat player” phenomenon is also present in ADR, it is noted that dispute system design can attempt to minimize repeat player advantages (Menkel-Meadow, 2000). Systems which incorporate the employer paying the costs associated with the ADR process are seen as an attempt to balance the power;

however, this raises other issues such as whether a system paid for by the employer is likely to be viewed as neutral by the employee (Menkel-Meadow, 2000). Indeed, it is possible that a bias or conflict of interest may arise if a third party neutral e.g. a mediator, were to receive a good deal of repeat business from the same employer.

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The above sections describe ADR in general and the various benefits and weaknesses associated with it. The following section will focus on collaborative law – its origins, its evolvement and why it might be appropriate for Irish employment disputes.

3.5 T

O

C

L

One of the most recent additions to the suite of ADR methods is collaborative law. Collaborative law was founded in 1990 by Minnesota divorce lawyer Stu Webb. Webb had been practicing family law for 17 years and had become disillusioned with the adversarial nature of it. Webb not only felt that the parties were being left feeling angry and stressed by the “fighting and bickering” but he was also. Having had enough, Webb was ready to quit the practice of law, however rather than quit he began experimenting with different ways to approach family law. The result of Webb’s “experimenting”

saw the establishment of collaborative law (Webb & Ousky, 2006). As word spread of the apparent success of collaborative law in Minnesota, lawyers in other states and in Canada sought to adapt this “new” form of law. Training in collaborative law was in demand. Webb together with San Francisco lawyer Pauline Tesler, with whom he had formed an alliance, carried out training sessions in California, Georgia, Florida, Vancouver and a number of other locations throughout the US and Canada. 2001 saw the establishment of the International Academy of Collaborative Practitioners (IACP), which now has 4,200 members in 24 countries (Lande, 2011). In 2002 collaborative law was

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introduced to Europe with the launch of the Collaborative Law International European Institute in Austria. England adopted collaborative law with the first training taking place in September 2003 while the first training in Ireland, conducted by Pauline Tesler, took place in April 2004 (Smyth, 2009). Other countries which are now well established in collaborative law include Australia, France, Bermuda, Germany, Czech Republic, Netherlands, Switzerland, Hong Kong, New Zealand, Israel, Kenya and Uganda (Scott, 2008).

In 2007, the Uniform Law Commission (ULC) in the United States recognised a need for consistency in the practice of collaborative law. The Uniform Collaborative Law Rules and Act (UCLRA) was drawn up and approved by the ULC in 2009 (Schepard and Hoffman, 2010). Although rejected by the American Bar Association (ABA) in 2011, the UCLRA has been enacted by three states: Utah, Nevada and Texas, while several other states have introduced it, including Alabama, Hawaii, Massachusetts and District of Columbia (ABA, 2012).

To date, several studies of collaborative law have been undertaken (Lande, 2011). These studies were conducted by Julie McFarlane (Canada and United States, 2004), William Schwab (United States, 2003), Richard Shields (Canada, 2004), Gay Cox and Syd Sharples (United States, 2006), John Lande (United States, 2007), Michael Keet and Wanda Wiegers (Canada, 2008), Mark Sefton (England and Wales, 2008), and finally the IACP Research Committee (Worldwide, 2006 – to date). Initial empirical evidence from these studies

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indicates that in general the clients are very satisfied with collaborative law and that cases are resolved both faster and more economically than traditional methods (Lande, 2011).