ADR (alternative dispute resolution)

ADR

There are 4 types

• mediation

• conciliation

• arbitration

• negotiation

Negotiation

Both party's agree to negotiate it is usually the first form of ADR. The 2 parties can negotiate of the 2 lawyers until an agreement can be reached direct The ways we can negotiate:

• Face to face

• Email

• Telephone

  not binding meaning that parties can withdraw at any timeSuitable in the majority of cases. For example personal injury

positives of negotiation

informal, Free unless lawyers are involved, maintains relationships, quicker than going to court, flexible

Negatives of negotiation

not legally binding, might still end up in court, imbalance of power, may not be willing to negotiate

Mediation

Both parties voluntarily agree to mediate. Involves reaching an agreement between the parties through a neutral 3rd party (mediator) The mediator cannot give their opinion unless they are asked for. The porpoise is to find common ground. Not legally binding so parties can withdraw at any time, the parties have control. There can be specialised mediators in an area of law. There is such thing as an expert mediator. Section 10 children and families act - makes mediation compulsory unless it is not suitable.

Positives of mediation

quicker, cheaper, private, lack of formality ,maintain relationships

Negatives of mediation

not binding, may not be willing to come to a solution, the mediator has knowledge but isn't an expert, may still end up in court, lack of precedent

Conciliation

Similar to mediation. It's a voluntary process where the parties retain control. They have to agree to participate. Involves a 3rd party (conciliator) who helps the parties recent their agreement. Conciliators are more active in their role. They will comment on areas of resolution. They ain't representative of either party and suggest common ground. Mostly applicable to employment cases eg industry action. Will run alongside an employment tribunal. ACAS - Gov funded it is not legally binding.

Positives of conciliation

private, quicker, lack of formality, flexible, independent.

Negatives of conciliation

imbalance of power, lack of President, bias, may still go to Court

Arbitration

Both parties agree to submit their issue to an abitrator-the arbitrator will manage a decision The charted institution of arbitrators provide arbitrators. Section 1 arbitration act 1996 - outlines the porpoise (free a fair decision without any delay or expense) The parties have control - they are free to decide now to resolve their dispute eg. Witnesses section 15 AA 1996 - parties can decide number of arbitrators

The parties can decide date /time there are 2 types:

• • hearing where evidence is given in person (mini-trail) including witnesses it is more formal

• • paper arbitration where evidence is submitted in writing

The decision can be appealed for 2 reasons:

S 68 AA act - serious regularity

s69 AA - error of law

Arbitration is available for mainly Scott V Avery clause

Positives of arbitration

less formal than Court, experts, flexible, private, cheaper, binding, appears are available.

Negatives of arbitration

imbalance of power, no President, lack of public knowledge, rights of appeal.