Consultation Paper on Alternative Dispute Resolution - Law Reform ...

specialisation in some areas…and varying claimant preferences in
others… it certainly appears that a modern civil justice system ought
to permit some menu of choices for particular kinds of processes.‖ 17
1.14 The concept of such a ‗menu of choices‘ emphasises the importance
of taking into account the preferences of those in dispute and increasing
avenues to access to justice. It also reflects the American concept of ‗fitting the
forum to the fuss.‘ 18 This involves allocating civil justice problems to the most
appropriate process, depending on what the parties involved wish to achieve.
1.15 In this respect, ―access to justice‖ encompasses access to a range of
processes. 19 Justice may sometimes require a decision from a High Court judge
who has heard and considered evidence and legal arguments from both sides
after an adversarial hearing. In another case, justice might mean an apology
and change of administrative process in response to a particular problem. It is
clear that in that sense there are circumstances in which ADR can provide
resolutions which a court cannot. 20
Case Study: Alder Hey Children’s Hospital
An example from England is the huge controversy and individual grievances
of over 1,000 people, which arose from the discovery that Alder Hey
Children‘s Hospital in Liverpool had, over a period of decades, retained
organs of children who had died there. This had occurring without obtaining
any consent to retention from the parents. From a legal perspective, each
non-consensual retention involved a justiciable assault. To deal with the
mass nature of the claims (over 1,000), the claimants were organised as a
group litigation. This claim had the potential to take up enormous court time.
In addition, however, the emotional element of the claim was, arguably, not
suitable for litigation. The claimants and defendants agreed to mediation
through the Centre for Effective Dispute Resolution (CEDR). The settlement
included financial compensation but it was accepted that the ability to
17 Menkel-Meadow ―Institutions of Civil Justice‖. <strong>Paper</strong> prepared for the Scottish
Consumer Council Seminar on Civil Justice (15 December 2004), available at
www.scotconsumer.org.uk/civil.
18 See paragraphs 1.55 to 1.57 below for a discussion on this concept.
19 See Green <strong>Paper</strong> on alternative dispute resolution in civil and commercial matters
COM/2002/0196 Final. Available at http://eurlex.europa.eu/.
20 See Lammy ―Speech on key issues for Government‖ delivered at Centre for
Effective Dispute Resolution Conference: The First Mediators‘ Congress,
November 2003, London. Available at
http://www.dca.gov.uk/speeches/2003/dl201103.htm.
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