1997 ADR and litigation
This page contains an outline of this research, and a summary of the key findings. Details of how to find the full report can be found at the bottom of the page.
Title
“Resolving Civil Disputes: Choosing between out-of-court schemes and litigation. A review of the literature”, Lord Chancellor’s Department Research Series No. 3/97
What is it about?
A review of literature about existing schemes that offer an alternative to courts for resolving disputes, about the way in which decisions are made as to which dispute resolution option to use, and a comparison between outcomes in different schemes.
Who did it?
The review was compiled by Tamara Goriely and Tom Williams, and commissioned by the Lord Chancellor’s Department (now the Department for Constitutional Affairs). It was published in December 1997.
Key findings
- There are a range of out-of-court dispute resolution options, from conciliation and arbitration schemes to ombudsmen dealing with specific types of complaint. However, most are not very well known or well used. This is primarily due to low awareness. A review of polls showing what proportion of the population have heard of redress organisations indicates that at the time of the research, ABTA had the highest level of awareness (59%), followed by the small claims court (56%) and OFTEL (52%). Many individual ombudsman schemes had much lower levels of recognition. This compares with 98% who have heard of the CAB network.
- Other factors suggested for lack of use of out-of-court schemes include: complex procedures – especially when the requirement to use an internal complaints procedure added an additional layer – and problems with enforcement.
- Out-of-court schemes are often cheaper and more approachable than going to court, but they may be slower.
- The review looks at available evidence comparing the outcomes of different dispute resolution options in a number of areas of law, including health, housing disrepair, consumer redress and financial services.
As an example, here is a summary of the review’s comparison of outcomes achieved through court action and though complaint to the Local Government Ombudsman (LGO) in housing disrepair cases:
- A comparison of housing disrepair cases taken to court with cases taken to the Local Government Ombudsman (LGO) indicates that in the year 1995-96 around 6,000 legal actions were brought, compared with 1,500 complaints taken to the LGO.
- Of repairs claims to the LGO, around a third were rejected as being premature or outside jurisdiction, and just over half were rejected as not involving maladministration or injustice. Less than a fifth provided a remedy to the complainant, and only 3% were upheld on a final report.
- Almost half of legally aided repairs actions were successful, in that the case either won in court or was settled for full costs. A further 14% settled without full costs. The remainder were withdrawn, and only 1% were lost in court.
- The cost of a full report undertaken by the LGO is roughly equivalent to court action, and takes a similar amount of time.
- The reviewers’ conclusions are that threatening to involve the ombudsman is “a cheap and effective way of putting pressure on a landlord”. The LGO is also very effective in identifying and remedying systemic and repeated problems, but less effective in individual cases where the landlord has taken a policy decision not to carry out repairs.
The review concludes that there should be better information and publicity about ADR schemes, and that the schemes themselves need to be improved, standards need to be published and enforced, concerns about fairness directly addressed, and government commitment to ADR needs to be backed up with ‘hard funding’. The authors describe proposals for a Council on ADR, to operate like the Council on Tribunals as an overseeing body, and OFOMB, a regulator of ombudsman schemes.
