THE SPREAD OF ADR FROM THE US TO THE GLOBAL COMMUNITY
The Problem :
Pursuing actions through the courts for breaches of international commercial obligations fails to meet the needs of the parties involved, both financially and emotionally. One solution is to include the concept of ADR, in particular adjudication, arbitration and mediation in the "contract" between the parties. Any difficulties and problems which occur will be provided with an outlet to release frustrations and emotions at a forum away from the confrontational atmosphere of the court room. The beauty of the mediation process in particular is that no lawyers are needed to represent the clients.
Recent developments in the UK :
In the UK, the Government's primary concerns have been to minimise the role played by the courts in dispute settlement in order to save money, to reduce the burden of work on the judicial system and to prevent disputes disrupting commercial relations and economic development. The chancelleries of several of the member states of the European Union are currently addressing the same problems. The second concern is with speed of dispute settlement and consumer satisfaction. The UK Government has introduced a compulsory adjudication process for preliminary dispute settlement in the construction industry. The amended UK Civil Procedure Rules 1998 introduced by Lord Woolf demonstrate that ADR is to play a central role in dispute resolution. Although the reforms fell short of introducing USA style; Court Ordered Mediation, the case management powers of the court allow judges to delay a case to enable parties to go to mediation and failure to mediate will lead to cost penalties. Lord Woolf also make it compulsory for lawyers to advise clients of the benefits of ADR.
It is likely that any industry or profession that does not address the problems of speedy, cost-effective dispute resolution could find Governments imposing a compulsory system on them. If the new UK systems result in significant savings and commercial advantages it is very likely that other European states will emulate it. Indeed, in the spirit of harmonisation and consumer satisfaction, the European Union might well choose to impose the UK model on the whole of the community.
ADR in South East Asia :
There is a rapidly growing recognition of the commercial values and benefits of mediation in Malaysia and South East Asia. The Asia-Pacific Economic Co-operation (APEC) recommends that commercial organisations on the Pacific Rim adopt mediation as a principal form of dispute resolution to facilitate trade and commerce in the region. The Singapore Bar and the Singapore Arbitration Centre have already done much work to promote the adoption of mediation by commerce. The Malaysian Bar Council has recently followed suit by launching their own Mediation Regional Centre as interest has been shown by legal practitioners on the use of ADR in dispute resolution in Malaysia.