Alterntive dispute resolution: ADR

What is it?

How does it work?

• Negotation is two parties, or their representatives, trying to reach a compromise.

• Informally it can be done verbally.

• Formally it can be done in a letter so it’s in writing.

• Commonly used in minor disputes such as returning items to shops.

• Negotiation is not binding (you can’t be forced to follow any agreement you come to)

• The two parties remain in control at all times.

• You can negotiate by: face to face, over the phone, by letter, email etc.

• Negotation may continue up until you get to court.

Advantages

Disadvantages

• Cheaper than going to court.

• More private than going to court.

• Faster and easier than going to court.

• Protects relationships.

• Decisions are not binding which increases it’s felxibility.

• It’s not binding so it can be ignored.

• One party being deliberately hostile (deliberately obstructive (difficult).

• One party may choose not to negotiate.

• One party may insist on going to court.

• In negotiation, compensation is usually lower.

• Theres no legal funding for negotiation.

What is it?

How does it work?

• A neutral third party (mediator) helps the parties to settle their dispute.

• Parties are free to leave at any time (withdraw).

• Mediators are not allowed to offer opinions unless asked.

• Often used in family cases (provided by charities like CEDR and Relate).

• About 80% of claims are settles outisde of court.

• Facilitate (help) the parties to understand others positions (points of view).

• Can be in the same room or different rooms.

• Mediators are meant to help the parties reach a promise.

• Mediators cannot offer their own ideas of solutions.

• Formal mediation:
  - Each party provides an executive (a preson to represent their views).
  - The executives sit with a mediator and listen to both parties.
  - The executives, with the mediator, will try and come to a conclusion. The mediator mediates between the executives. The pannel will then suggest a solution.

Advantages

Disadvantages

• Cheaper than going to court.

• The parties retain control and come to their own situations.

• It’s private.

• Avoids hostility and protects relationships where possible.

• Doesn’t require lawyers.

• Faster than going to court and easier to arrange.

• One party may refuse to mediate.

• One party may refuse to compromise and reach a settlement.

• Party’s may choose to ignore it.

• Damages tend to be lower in mediation.

• Still legal costs involved due to paying for a mediator.

Advantages

Disadvantages

• Cheaper.

• Informal and quick.

• Claims will be heard by a specialist panel.

• ACAS is encouraged before a hearing - avoids tribunal.

• Hearing and heard without the public or press - ensures confidentiality.

• Panel gives a written judgement which can be relied upon.

• There are limited rights of appeal.

• Claims need be issued quickly.

• Lack of funding - legal aid is not available for most tribunals which puts an applicant at a disadvantage if the other side uses a lawyer.

• More formal than the ADR.

• Delays in getting a hearing due to the number of cases heard by tribunals.

• Appeals are limited to issues of law.

What is it?

How does it work?

• Like mediation, but a conciliator plays a more active role in the process.

• The parties remain in control at all times.

• Conciliation is not binding.

• Used in employment contexts.

• Conciliator will discuss/suggest various compromises or grounds for a settlement with both parties.

• Parties remain in control and can withdraw at any time.

• Parties do not have to accept any proposed settlement.

• ACAS, a conciliation service, tries to conciliate with those with employment disputes prior to employment tribunals and can also become involved in industrial disputes.

Advantages

Disadvantages

• Cheaper than a court action.

• The parties have some control in choosing the conciliator / the process.

• Future business relationships can be preserved.

• It’s less formal than court.

• Lawyers are not necessary but can still be used.

• It’s less confrontational than courts.

• It’s quicker and easier to reach a resolution.

• The decision may not be legally binding and so can offer the parties some flexibility.

• A forceful conciliator may dominate the discussions and lead parties to feel forced into accepting an agreement.

• The process may not result in resolution.

• The procedure may not be binding on one or both of the parties.

• The claimant may recieve a lower settlement than they would have if they had gone to court.

• There are still some costs involved.

• Legal aid is not obtainable for conciliation.

What is it?

How does it work?

• Defined in S1 of the Arbitration Act 1996.

• Both parties agree to allow a neutral third party / a third party panel to settle the dispute.

• The arbitrator is usually an expert in the field of the dispute.

• Common for arbitration to be used in building contracts, package holidays and phone contracts

• Arbitrators decision is called an award; awards are legally binding and can be enforced by the courts.

• Parties can choose to use arbitration - which is usually agreed in writing prior to the disagreement.

• Where a contract has an arbitration clause, arbitration must take place (known as Scott V Avery clauses)

• The initial agreement will name an arbitrator ot provide a method for choosing one. If there is no person identified, the courts may appoint arbitrators.

• Paper arbitration: All points are set out in writing and the arbitrator make decisions based on this.

• Formal hearings: very similar to court, but private, the time and date are agreed by the arbitrators and the parties - the hearing will take place in private.

• Legal representation is not needed which can save time and money.

• Awards can only be appealed if there’s serious irregularity in the proceedings or on a point of law.

Advantages

Disadvantages

• Cheaper than going to court.

• The arbitrator will be qualified and experienced.

• The arbitrator’s decision is final and binding.

• Decisions can be enforced by the courts.

• The parties can set the form of the process and it’s less formal than going to court.

• Lawyers are not always needed - this makes the process cheaper/less adversarial.

• Quicker and easier to resolve than courts.

• Hearings are in private which may reduce embarassment.

• The process can be formal and complicated.

• Arbitration is likely to be more expensive than other forms of ADR.

• Arbitration is not approiate if the dispute involves complex points of law.

• The claiment may get a lower award.

• No legal aid - this is particularly problematic if arbitrating against a business which may use lawyers.

• Unrepresented claimants will be at a disadvantage if complex points of law arise.

• There are limited rights to appeal.

• Any future appeals are very likely to require a lawyer.