Alternative Dispute Resolution (ADR) - OCR A Level Law

What is ADR

A way of solving a legal dispute without going to court

4 main types of ADR

Negotiation.

Mediation.

Conciliation

Arbitration.

Negotiation

Where C and D have informal talks and try to come to an agreements (sometimes parties will have lawyers negotiate for them, particularly businesses, and some negotiations may continue once the trail has started)

Are agreements made through negotiation binding?

No, the agreements/decisions made during negotiations will not be binding

Strengths of Negotiation

Cheap and quick.

Can be started and continued at any time.

Can involve plans for business which courts could not order in a trial.

Weaknesses of Negotiation

Power imbalances.

if parties refuse to talk or are hostile towards each other they cant negotiate.

No guaranteed binding decision.

Failed negotiation will draw out the process.

Mediation

Similar to negotiation but there is a mediator (middleman) to carry messages between both parties.

What does a mediator do

Communicates messages between parties without giving their view or offer. However the may give their evaluation on the merits of each side

The decision in mediation

The decision in mediation is not binding

Mediation services

Largest service is 'Centre for Effective Dispute Resolution (CEDR)'

West Sussex Mediation Service

Kent Family Mediation Service

Conciliation

Similar to mediation except the conciliator takes a more active role and will suggest possible solutions

Conciliation Decicions

Decisions made during conciliation are not binding

Who are ACAS

A company that gives professional and partial advice on the legal position the parties would have

Strengths of mediation and conciliation

Both parties still have control over the whole process

Dont have to base the decision off legal grounds

Avoids the adversarial nature of trials, everyone wins

is very effective, 88% of cases being settled and 20% that hadnt still had quicker cases due to it

Weaknesses of mediation and Conciliation

No grantee a resolution will be upheld/not binding

It depends on how good the mediator or conciliator is

The amount agreed on is often a lot lower then the courts award

Arbitration defined by

Section 1a of the Arbitration Act 1996

Arbitration definition

The object of arbitration is to obtain the fair resolution of disputes by an impartial tribunal without unnecessary delay or expense

What does s1b make clear about arbitration

Parties should be free to decide how the arbitration process works, unless it goes against the interest of justice

Choosing an arbitrator

Parties can choose a arbitrator how they want, but s15 of the Arbitration Act states there must be a odd number of arbitrators (the court will appoint one if the parties can not agree)

Is arbitration legally binding

Yes, arbitration is legally binding

Can you appeal a decision in arbitration

S68 of the Arbitration Act states you have the right to appeal, but only if there is a serious irregularity in the process or if a point of law was wrongly considered

Scott and Avery clauses

A clause in commercial businesses contracts which states that the companies agree to solve any disputes they encounter via arbitration. or at least try to

Strengths of arbitration

Lots of control over how the case is handled

You can have expert arbitrators involved to make informed decisions

It is dealt with privately unlike in court cases

Cheaper and quicker then court cases

The decision is legally enforceable

Weaknesses of arbitration

No legal aid, a disadvantage for those who cant present there case very well

If an unexpected point of law came up, an arbitrator without legal knowledge would be little help

Fee's can still be expensive for professional arbitrators

Grounds for appeal are pretty limited

Delays for arbitration can be as bad and that for courts

What are online dispute resolution (ODR)

Online services that offer to settle certain disputes online, particularly between customer and consumer.

Examples of Online Dispute Resolution

eBay

Resolver

Financial Ombudsman Service