alternative dispute resolution 1

What are the four types of Alternate Dispute Resolution?

Negotiation, Mediation, Conciliation and Arbitration

What is Alternate Dispute Resolution?

A different way other than litigation of solving dispute claims

Should ADR be used before going to court?

Yes, ADR is encouraged by the Civil Procedure rules to occur before the court process is started, but this is not compulsory. Some forms of ADR however may be made compulsory (Families Act 1996 requires mediation in family breakdown cases)

What is Negotiation?

A give-and-take discussion between disputing parties and usually their legal representatives until an agreement is reached

In what ways do people typically negotiate?

They can negotiate through telephone, letter, email, conference calls or face to face

Are decisions reached in negotiation binding?

No, they are often said/written without prejudice and cannot later be referred to if the case goes to court unless parties formally agree in writing

In what circumstances is negotiation used?

Neighbour disputes or disputes between householder and tradespersons

What is Mediation?

A discussion which includes a independent third party to constructively direct the other parties to resolve their own dispute (by keeping them talking)

What is a Mediator?

An independent party, who can specialise in the area of dispute, helping both parties to come to a resolution

In which ways can mediation be brought about?

Parties can agree to mediate or may have to do it before court (eg. Families Act 1996 requires parties to mediate in cases of family breakdown)

In what circumstances is mediation used?

Typically used in family disputes (Families Act 1996) or in neighbour disputes (West Kent Mediation Scheme/Sussex Mediation Services)

How do parties acquire a mediator?

Parties can choose a mediator themselves or in some cases, mediators are provided (National Association of Family and Conciliation Services provides mediators for family cases)

Can mediation be used by businesses?

Yes, Commercial Mediation is provided by the Centre for Dispute Resolution. The CFDR has been involved in 10,000+ mediations and has saved £2.8billion (2016).

Is the decision reached in mediation binding?

Not always. Normally, the decision is NOT binding but it can be if parties agree to it.

Do parties have legal representatives in mediation?

No, they are encouraged not to. There is no legal funding either, discouraging it further.

Parties have no freedom over venue, time, place etc. True or False?

False. Parties have the freedom to decide where and when the mediation takes place, as well as many other things.

What is Conciliation?

A negotiation between two parties, involving a conciliator, who aids them to reach a conclusion

In what circumstances is conciliation used?

Typically used for resolving commercial, industrial and employment disputes

How is a conciliator chosen?

Parties choose the conciliator themselves

In what way can conciliation be brought about?

Parties come to conciliation voluntarily

What is the role of the conciliator?

They put forward suggestions for the parties to consider and agree by themselves. They are more pro-active than a mediator.

Is the decision made in conciliation binding?

No, courts cannot enforce the decision, nor can parties appeal. The success depends on the will of the parties to co-operate.

What is one example of a company who provide conciliation services?

ACAS (Advisory, Conciliation and Arbitration Service). They provide commercial conciliation for industrial disputes with the conciliator speaking to the parties separately.

What is Arbitration?

The most formal type of ADR. The settling of a dispute by two parties, aided by an independent party.

Which act sets out the procedural rules for Arbitration?

Arbitration Act 1996

In what way is arbitration brought about?

Parties must agree to it in writing and will often agree to go to arbitration if a dispute arises

What is the Scott v Avery clause?

A clause included in a business contract, agreeing to go to arbitration if a dispute arises

In what circumstances is arbitration used?

Typically used in commercial disputes and consumer issues (ABTA - uses arbitration to resolve disputes about package holidays)

How is an arbitrator selected?

Parties can choose them themselves or courts can choose an arbitrator if parties cannot decide.

An arbitrator can be…

a legal expert or a technical expert on that specific area of dispute

Can parties use legal representation?

Yes. They will not have to pay winner's costs, but there is no legal aid, so this will have to be privately funded. Usually, parties represent themselves.

In what ways do people typically arbitrate?

Arbitration is usually done face to face or is paper based.

Are the decisions made in arbitration usually binding?

Yes. It can be enforced through the courts on those who do not stick to the decision

Can arbitration decisions be appealed, and if so, on what grounds?

Decisions can be appealed but on very limited grounds. The grounds are:

1) Arbitrator got procedure wrong

2) Arbitrator got law wrong

What is the professional body called in which arbitrators are in?

The Chartered Institute of Arbitrators

What is an example of a company which provides an arbitration service?

ACAS (Advisory, Conciliation and Arbitration Service)

Advantage of Negotiation/Conciliation/Mediation: Time

It is quicker than the civil court process, which is slow and time consuming. It can take months or years to take a case to trial, where as N/C/M can get disputes resolved quickly.

Advantage of Negotiation/Conciliation/Mediation: Cost

It is cheaper than going to the civil courts to solve a dispute. In court, you have to pay court fees, legal representation and have litigation risk. In ADR, parties usually represent themselves, there is no legal aid and parties have to pay their own costs, win or lose. It is often free, but costs for third parties can be high.

Advantage of Negotiation/Conciliation/Mediation: Formality

N/C/M is a lot less formal than the courts. This is more inviting as there is less complexity (as opposed to the courts eg. Civil Procedure Rules).

Advantage of Negotiation/Conciliation/Mediation: Privacy

N/C/M is conducted in private between the two parties (and in C/M, a third party). This dispute is not open to the public or the press, unlike the courts, and can maintain personal or business relationships in the future which can be important in family cases. Nobody is forced to 'air-dry' their disputes in public.

Advantage of Negotiation/Conciliation/Mediation: Inquisitorial Process

In N/C/M, the process is more of a discussion than the adversarial court process, which seems more like a competition. Both parties can exit ADR feeling as if they have both won as their decision is based on compromise and good relationship, as opposed to a battle in the court system in which one party wins and the other loses.

Disadvantage of Negotiation/Conciliation/Mediation: Non-Binding

The non binding nature of N/C/M can be problematic. Parties can go through the process of ADR and come out having reach a decision, but one party can abandon the joint agreement reached or simply not adhere to it in the first place. This means that they might have to start a court process after all, and this would deem the use of ADR useless, delay matters and increase cost

Disadvantage of Negotiation/Conciliation/Mediation: Cost

N/C/M can not be as cheap as originally thought. Commercial business can provide neutral third parties but can come at a high cost. Some parties can cost over £1,000 for their services, which can exclude people from taking part, as there is no legal funding

Disadvantage of Negotiation/Conciliation/Mediation: Inequality of Bargaining Power

Legal representatives are not excluded from the ADR process, just not encouraged. This means that if one party has a legal representative and the other doesn't, parties can be pushed to compromise and this leads to unfair decisions. This may happen especially in an employment dispute.

Disadvantage of Negotiation/Conciliation/Mediation: High Level of Co-operation

N/C/M all rely on a high degree of co-operation. Parties must agree on a third party, venue, time etc as well as the outcome. Often, family cases can include a high level of hostility and employment cases can include militant trade unions who want to stand their ground. In these cases, it is unreasonable to expect parties to resolve it themselves with limited intervention due to irretrievable relationships or abuse of power.

Disadvantage of Negotiation/Conciliation/Mediation: Non Legally Trained Third Parties

Non-legally trained third parties can struggle with the legal aspects of any disputes which involve complex areas of family law/property law/contract law, which may create absurdities and wrong/unfair decisions. However, these decisions are not legally binding so if they are made incorrectly, there is still some leeway for them to be abandoned/put right.

Advantage of Arbitration: Binding Agreement

Decisions made in the arbitration process are binding and can be enforced by the courts if one party abandons or doesn't adhere to the decision. This stops parties ignoring the ADR process and having go through the courts.

Advantage of Arbitration: Privacy

Arbitration is held in private, and this means that the parties do not have to air-dry their disputes in public. This maintains relationships and keeps personal issues out of the public eye.

Advantage of Arbitration: Cost

Arbitration is cheaper than going to the courts. There can be a fee for an arbitrator or the process itself (ABTA charge £108-£2999) but is still cheaper than taking the case to court. Parties are also encouraged to represent themselves and there are no costs for the loser. This means people are more likely to bring a case in arbitration rather than to the courts for fear of losing lots of money.

Advantage of Arbitration: Grounds for Appeal and Formality

Although limited, the Arbitration Act 1996 sets out some grounds for appeal if the decision is unfair in some way. This creates fairness for both parties if the arbitrator gets the procedure or the law wrong. The process of Arbitration is also less complex and formal than the courts which have the Civil Procedure Rules. However, it is still somewhat formal due to the rules set out in the Arbitration Act 1996.

Advantage of Arbitration: Technical Expertise

Many arbitrators are lawyers or are members of the Chartered Institute of Arbitrators, meaning that they have technical knowledge on the area of dispute, which judges in the courts do not. This helps achieve an appropriate outcome for both parties.

Disadvantage of Arbitration: Inconsistency

Most arbitrators are technical experts and not lawyers, meaning that they can ignore legal issues, resulting in inconsistent decisions being made. The decisions are unreported and the rules of judicial precedent do not apply, meaning that earlier binding precedent does not have to be followed

Disadvantage of Arbitration: Limited Grounds for Appeal

S68 of the Arbitration Act 1996 says that the only ground for an appeal is 'serious procedural irregularity'. As the decision is legally binding, if it is unfair or wrong, the parties cannot dispute it and this leads to unfair impositions on one or both of the parties

Disadvantage of Arbitration: Inequality of Bargaining Power

If one party has a lawyer and the other doesn't, than this could be problematic. There is no state funding for any type of ADR, including arbitration and this serves to promote inequality. Lawyers are not banned, they are simply discouraged.

Disadvantage of Arbitration: Cost

Some forms of Arbitration can be costly such as paying for commercial arbitration services (eg. ABTA). Some forms can also be seen as almost as formal as the court, which can be off putting for some people.

Disadvantage of Arbitration: Enforcement of Binding Arbitration

If one party does not adhere to the terms of the agreement, then it will have to be taken to the courts. This is a problem as the court process can be time consuming and complex. S66 says that you need permission of the civil courts to legally enforce the agreement

What are the three types of tribunal?

Administrative, Employment and Domestic

What areas do administrative tribunals cover?

Areas of law such as education, welfare benefits and immigration

What do employment tribunals cover?

Employment disputes about unfair dismissal or workplace discrimination

What do domestic tribunals cover?

They are set up by professional bodies eg. Law Society/PFA to deal with disciplinary matters and compliance with rules

Tribunals are governed by the courts. True or False?

True - the Courts, Tribunals and Enforcement Act 2007 introduced the first tier which has 7 chambers to hear tribunal cases and now has the upper tier which has 4 chambers to hear appeals from the first tier

Are tribunals more formal, less formal or the same formality than the courts?

Less formal although one of the most formal types of ADR. The procedure is formal alike the court process (evidence provided by both sides and cross examination)

Can parties be legally represented?

Yes, parties are often represented by lawyers but legal funding is not available

Who hears tribunals?

A panel of three, the chairperson (judge or legally qualified) plus two other tribunal members (usually qualified experts in the area of dispute)

Is the decision made in Tribunals binding?

Yes, it is enforceable in the courts. The Chairperson will read out the decision, which is done in private but is recorded

Is there a right to appeal a decision made in tribunals?

Yes, there is a right to appeal from the first tier to the upper tier but only if it involve an important point of law

Advantage of Tribunals: Expertise

The panel has the benefit of a legally qualified person as well as two other panel members with expertise in the field. This means that there is wealth of technical knowledge, not found in the civil court process as judges have to read up on every cae and rely on reports by technical experts in evidence.

Advantage of Tribunals: Informality

Although quite formal, they are less formal than the courts. Wigs and gowns are not worn and there are fewer traditions, procedural rules and less formality, which is less off putting for parties.

Advantage of Tribunals: Speed and Cost

Tribunals can come to court very quickly and do not have long delays between issuing of claim form and trial, as opposed to the civil courts. Trials only last a day which reduces cost, as well as the lack of legal representation and no litigation costs.

Advantage of Tribunals: Reduces Pressure on Courts

By taking a large number of civil disputes away from the courts, there is more free time for more important cases and speeds up the pre-trial procedure

Advantage of Tribunals: Privacy

Tribunals are private and there is no public or press access. This helps maintain relationships, especially in employment disputes. However, decisions are recorded and this makes the decision easier to enforce and appeal, as well as providing a public forum for those who want to show the problems that they suffered or endured.

Disadvantage of Tribunals: Lack of Openness

The privacy of tribunals and the fact that matters are resolved behind closed doors can cause worries about fairness - possible influence of the chair over the other panel members has been a cause for concern

Disadvantage of Tribunals: Lack of Legal Aid

This can lead to inequality of bargaining power if one party eg. the employer can afford a lawyer and the employee cannot. This is unfair and can creare a bias towards one party.

Disadvantage of Tribunals: Lack of Independence

Panel members are not as independant as they can be heavily influenced by the chair person. Panel members can also be lay people, so they can only give up certain periods and this slows the process down

Disadvantage of Tribunals: Limited Review

You cannot appeal outcome of damages, only a point of law. The specialist panel set up in 2007 to review tribunals has been scrapped, leading to a higher degree of unfairness

Disadvantage of Tribunals: No Reason Given

No reasons have to be given for the decision made, which has been criticised by the ECHR. There is also a lack of privacy, as decisions have been recorded and can be accessed widely. This might give the wrong impression of a person, especially as there has been given no reason by the chairperson.

What is Online Dispute Resolution?

A new way in which it is possible to resolve your disagreement using sources on the internet. It is a type of mediation.

What is one big company who offer an ODR service?

eBay - they provide an ODR servie for customers to negotiate to resolve issues like non-payment and mis-description of goods. If the dispute cannot be solved by both parties, the matter goes to an online discussion area, in which a member of eBay staff makes a binding decision.

Name a financial service which offers an ODR service

The Financial Ombudsman Service - they offer a service of dispute resolution between customers and UK financial service providers. An adjudicator will consider the case and suggest a resolution. If parties do not agree, the dispute is reffered to an ombudsman who make a final decision which is binding if parties agree.

Are ODR services increasing?

Yes, there are increasingly more ODR services such as www.mediate.com

Advantage of ODR: Accessibility and Easy to Use

Sites are accessible from laptops, phones and tablets which makes them an attractive option. They can also be accessed from home or when you're out. Most sites give helpful prompts and guidance which makes them easy to use.

Advantage of ODR: Cost

Some sites are free; any charges which are necessary are a fixed abound and there are no hidden costs. This makes ODR attractive. There is also no need for legal representation

Advantage of ODR: Convenience

It is a convenient way to solve a dispute. It avoids cost, time taken in travelling to a meeting, as well as possibly having to take days off work. Now that businesses operate worldwide, it a very important method of dispute resolution

Disadvantages of ODR: Limited suitability

This type of dispute resolution is only suitable for contract disputes (consumer issues) and is not suitable for injury claims or where face-to-face contact can be essential

Disadvantages of ODR: Co-Operation

There is a need for both parties to agree otherwise ODR will be deemed useless and will have to litigate in the civil courts

Who wrote the review in which recommended Online Courts?

Lord Briggs (2016)

When was the Online Court predicted/suggested to be set up by?

2020

What is the first proposed stage of the Online Court?

An automated system which identifies key issues and documentary evidence that each party will rely on

What is the second proposed stage of the Online Court?

'Conciliation' - a case manager will act as the third party

What is the third proposed stage of the Online Court?

Will only be used if parties cannot agree in the conciliation stage. A judge will be sent the case matter, which can be dealt with through video call or face-to-face meeting. Documents will be viewed on screen.

Advantage of Online Court: Access to Justice

It will ensure more people get access to justice as there is no cost of legal representation necessary or no court fees

Disadvantage of Online Court: Doesn't suit some Cases

The Online Court will only work for paper based disputes. It will not work for cases where there are issues involving questions about fault or pople telling the truth, as well as disputed injury claims or other negligence claims.