1.5 – Alternative Dispute Resolution Flashcards
What is ADR?
Alternative Dispute Resolution (ADR)
- Methods of resolving a civil case
outside of the courts. - Encouraged by Part 1 Civil Procedure Rules 1998 following the Woolf Reforms.
- Courts can ‘stay’ proceedings to allow parties to try ADR. Cannot force parties to use ADR but can sanction if parties unreasonably refuse to try it.
Why is ADR is used.
Court action (litigation) is not always
the most appropriate means of
resolving a dispute because of the
following reasons:
- Complexity of legal procedures.
- The delay in resolution.
- The cost of court action.
- Intimidating atmosphere of the courts.
- The public nature of court action.
- The adversarial nature of court
action which will result in a
deterioration of the relationship
between the parties.
What are the 4 main types of ADR
- ARBITRATION
- MEDIATION
- CONCILIATION
- NEGOTIATION
When is ARBITRATION commonly used?
Commonly used in commercial and
contract cases, and most notably high-profile sports cases
What are the key features of ARBITRATION?
The parties agree to let an independent arbitrator make a binding decision.
- Many contracts include a Scott v Avery clause to agree pre-contractually to arbitrate in the event of a dispute.
- This is the most formal method and is adjudicative.
- The decision of the arbitrator is called an ‘award’.
- There can be a hearing though many cases are conducted using ‘paper arbitration’.
- An award can be appealed only on the basis of serious irregularity in the proceedings or on a point of law (s.65 Arbitration Act 1996).
Name the key authorities for ARBITRATION.
ARBITRATION. Key authority
* Arbitration Act 1996
* Institute of Arbitrators
* Scott v Avery
* The European Directive on Alternative Dispute Resolution
Advantages of ARBITRATION.
- The parties have discretion as to the choice of arbitrator with the existence of the
Institute of Arbitrators. - The hearing procedure is left to the discretion of the parties; they can choose
the venue, date, number of witnesses etc. - There is rarely any publicity.
- The award is binding and can be enforced by the courts.
- The arbitrator is an expert in the field.
Disadvantages of ARBITRATION
Public Funding is not
available, so one party may
have an advantage from the
outset.
* Appeals are restricted in the
arbitration process.
* Parties may feel they do not
get their “day in court”.
* If a legal point arises,
there is not always a legal
professional in the hearing
When is MEDIATION commonly used?
MEDIATION
Commonly used in family disputes or
any area where a relationship needs to be maintained.
What are the key features of MEDIATION
The parties are encouraged to come to their own settlement with the help of a neutral third-party mediator who acts as a “gobetween”.
- Mediator’s role is facilitative rather than active.
- The Ministry of Justice funds the Civil Mediation Online Directory. Individuals can search the directory for a mediation provider that is local to them; and the cost of mediation is based on a fixed fee,
depending on the value of the dispute. - Not automatically binding unless a contract is drawn up.
Name the key authorities for MEDIATION
Key authority
* Dunnett v Railtrack
* Halsey v Milton Keynes NHS Trust
* Neighbour disputes
* Mediation in Divorce Cases under s.10
Children and Families Act
2014. In most cases involving a dispute over finances or children, the parties will be required to attend a Mediation Information
and Assessment Meeting (MIAM).
- Small Claims Mediation Service
- Court of Appeal Mediation Scheme
- Online Dispute Resolution e.g.,
www.mediate.com/odr - CEDR – commercial mediators
Advantages of MEDIATION
- It is a private and confidential
process. - The parties enter into mediation voluntarily.
- It is quick, cost-effective and accessible.
- There is a good chance that the parties can maintain a relationship.
- CEDR reports 80% of cases are settled at mediation.
Disadvantages of MEDIATION
- The dispute may end up going to court anyway if mediation fails, resulting in
greater costs. - Increasingly being seen as a compulsory step in the process.
- Where parties are “forced” into mediation, there is a half-hearted commitment; decreasing the chances of success.
When is CONCILIATION commonly used?
CONCILIATION
Commonly used in industrial disputes.
What are the key features of CONCILIATION
- The third-party plays a more active role in the proceedings in order to push them in the direction of a settlement.
Name the key authorities for CONCILIATION
Key authority
* ACAS
* Early Conciliation
Advantages of CONCILIATION
It is a cheaper option than litigation.
- It is a private and confidential
process. - ACAS adopts a prevention rather than cure approach to dispute resolution.
- It identifies and clarifies the main issues in the dispute.
- Conciliator plays a more active role.
Disadvantages of CONCILIATION
- Heavily relies on the skills of the conciliator.
- The dispute may end up going to court anyway if conciliation fails, resulting in
greater costs.
When is NEGOTIATION commonly used?
NEGOTIATION
Used in most cases at the outset of the
dispute.
What are the key features of NEGOTIATION
Resolving the dispute between the parties themselves; can involve solicitors.
- Can be completed using letters, email, phone, meeting, etc.
- At its most basic, involves returning faulty goods to a shop; its most complex involves solicitors and settlement offers being exchanged.
Name the key authorities for NEGOTIATION
None
Advantages of NEGOTIATION
Completely private.
- Quick resolution, maintaining relationships.
- Relatively informal method of resolution.
Disadvantages of NEGOTIATION
- Involving solicitors can make the process costly.
- Offers are often exchanged and are not agreed until the day of court, wasting time
and money. - People see it as a “halfway” house and think that they are not receiving as much as if
they had gone to court.
