We have already looked at the series of recommendations put forward by the Civil Justice Action Group (CJAG) in Scotland - and considered why the questions raised might be of wider interest. The article can be found here.

The first recommendation put forward by CJAG is that future civil justice reforms should be considered in the wider context and not restricted to the civil court system. The report points to the recent and forthcoming changes to alternative dispute resolution processes (for example the Arbitration (Scotland) Act 2010) and suggests that there is an opportunity to consider these reforms in tandem, ensuring that they reflect the needs of the users of the system.

Any business that has used the civil justice system will be aware of the increasing number of alternatives to the traditional court route that are available to help resolve a dispute. Arbitration, mediation, expert determination, conciliation, and online dispute resolution are all classed as "alternative". These methods of dispute resolution are valuable tools that, if used correctly, avoid or reduce the cost and delay that is inherent in any dispute that is litigated through the courts.

However, to suggest that a system wide approach could be seen as an ambitious step. In England there was a specific rule change which required the courts, not just the parties, to ensure that regard was had to alternative methods of resolving the dispute. If a change is to be made it must be is structured in a manner that facilitates and encourages the use of these methods. The experience in the English courts also suggests that the early use of alternative dispute resolution should be encouraged. In that way the culture of early disposal of cases is embedded in the lawyers' mindset, as well as the clients'.

The Gill Review had a very specific remit, and whilst the recommendations made do take account of methods other than litigation, they were considered through the lens of a system where the primary method of resolution is the formal court process. The rate of change within society and the global civil justice system requires that we look beyond the court process. There is a danger that if other methods of dispute resolution are not fully considered, they will truly be seen as 'alternative' and their effectiveness will be limited.

All this may seem obvious to the business person. Of course you should create a dispute resolution system that looks at the wider context. However, the court process in any country is usually an ancient and respected institution - so any change to that system is usually carefully considered and cautiously undertaken.

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