1A.1.3 Alternative Dispute Resolution

Question 1

What is the role of ADR?

Answer 1

To resolve disputes without having to go through the court or tribunal process.

Question 2

What are the four types of ADR?

Answer 2

• Negotiation
• Mediation
• Conciliation
• Arbitration

Question 3

Negotiation

Answer 3

The process of trying to come to an agreement. It is the easiest and least confrontational form of ADR.

Question 4

How can negotiation be carried out?

Answer 4

• Face-to-face talking
• Writing
• Phone or e-mail
• Any other suitable method

Question 5

Is negotiation expensive?

Answer 5

If the negotiation is carried out by the parties, it should not cost them anything, but the involvement of lawyers will inevitably involve cost.

Question 6

Advantages of negotiation

Answer 6

• Cheaper
• Quicker
• Private – Not open to the public
• Could include agreements about future business deals.
• Solicitors could be brought in to assist with negotiation.

Question 7

Disadvantages of negotiation

Answer 7

• Mistrust between parties
• Not enforced by court
• May be unsuccessful
• May prolong the case, leading to emotional strain.
• Some parties may be unwilling to co-operate with each other.

Question 8

Mediation

Answer 8

The process of using a neutral person in a dispute to help parties to find a compromise solution.

Question 9

Who is the mediator?

Answer 9

A trained person who acts as a go-between in an attempt to help people in a dispute come to an agreement.

Question 10

How is mediation carried out?

Answer 10

The parties will usually be in separate rooms or locations, and the mediator acts as a facilitator between the parties to put forward points and opinions.

The parties have control over the process, so they can stay as long as they wish and can withdraw at an time. The mediator will not offer an opinion to either party unless asked to do so.

A successful mediation depends on both parties embracing the concept and actively participating.

Eventually it is hoped that the parties themselves will reach a compromise and agreement acceptable to both.
Even if the whole matter is not resolved, this type of procedure may be able to narrow down the issues so that if the case does go to court, it will not take so long.

Question 11

Centre for Effective Dispute Resolution (CEDR)

Answer 11

A charity which offers mediation services. It promoted the service as an effective form of alterative dispute resolution and provides training for mediators.

Question 12

What branch of law does mediation have to be used before a case can be started in the civil courts system?

Answer 12

Family disputes over children and financial issues. The parties have to show that they have attempted the process before starting court proceedings.

Question 13

Advantages of mediation

Answer 13

• Cheaper
• The parties are in control
• The mediator is neutral (no bias towards parties)
• The mediator will encourage proposals to be reached.
• Allows parties to hear the other party’s views in a controlled environment.

Question 14

Disadvantages of mediation

Answer 14

• If parties refuse to participate in good faith, mediation will not work.
• Parties may need additional legal advice, leading to more fees.
• Another session may need to be scheduled, increasing cost and time.
• Dispute might not be resolved, especially if it is complex with lots of different elements.
• Mediator may show bias towards a certain side (e.g. allowing one party to speak more.)

Question 15

Conciliation

Answer 15

The use of a neutral person to actively participate in resolution between the parties.

Question 16

What is the role of a conciliator?

Answer 16

They play an active role in assisting parties to resolve their dispute. The parties still have control over the process and may withdraw at any time. However, the conciliator will make suggestions, such as areas for compromise and a possible basis for settlement.

Question 17

Advisory Conciliation and Arbitration Service (ACAS)

Answer 17

A an example of a conciliation service:
- It tries to encourage the parties in an employment dispute to reach a settlement before a claim can be issued in an employment tribunal.

• It also gets involved in industrial disputes – for example, if a trade union calls strike action, ACAS will attempt to conciliate between the parties to reach a compromise.

Question 18

Advantages of conciliation

Answer 18

• The parties are in control and can withdraw at any point in the process.
• The decision does not need to be legally binding.
• Avoids having winners and losers. - With mediation, everyone wins.
• Easier to make future business deals.

Question 19

Disadvantages of conciliation

Answer 19

• No guarantee the matter will be resolved, causing additional cost and delay.
• “Leaning on people is the only way that you will get a settlement. If you lean on two halves of a seesaw, it is usually the weaker half that will break and this is where you should apply your effort”.
• Amounts paid in these settlements are often lower than the amounts that would have been awarded in court.

Question 20

Arbitration

Answer 20

Where both parties voluntarily agree to let their dispute be left to the judgement of a neutral arbitrator (or a panel or arbitrators).

Question 21

Who is the arbitrator?

Answer 21

An expert who acts as a judge to determine the outcome of arbitration.

Question 22

Which Act of Parliament governs arbitration?

Answer 22

Arbitration Act 1996

Question 23

Companies can put an clause in a contract to agree on arbitration if there are any disputes arising. What is this called?

Answer 23

Scott v Avery clause

Question 24

How is the arbitrator chosen?

Answer 24

The initial agreement for arbitration will either name an arbitration or provide a method for choosing one.

If there is no selection procedure, a court may appoint an arbitrator.

Question 25

Who decides the date, time and place of arbitration hearings?

Answer 25

The parties (alongside the arbitrator).

Question 26

What is paper arbitration?

Answer 26

Where all the points are set out in writing and the arbitrator makes a decision based on this – to a form court-like hearing.

Question 27

What is the arbitrator’s decision called, and can it be enforced?

Answer 27

The arbitrator’s decision is called an ‘award’ and is final and binding on the parties. If necessary, it can be enforced in court.

Question 28

When can an arbitrator’s award be challenged?

Answer 28

Only if there is a serious irregularity in the proceedings or on a point of law

Question 29

Litigation

Answer 29

Where parties take a dispute to court

Question 30

Advantages of arbitration

Answer 30

• Parties can choose their arbitrator.
• Award is final and enforced through the courts.
• Procedure is flexible, usually leading to a more informal and relaxed hearing than in court.
• Quicker than using the civil courts system.

Question 31

Disadvantages of arbitration

Answer 31

• Legal aid is not available. (Only available in courts system).
• Unexpected legal point may arise in the case which requires the arbitrator to be a qualified lawyer.
• Professional arbitrators are expensive.
• Delays for commercial and international arbitrators may be nearly as long as a wait for a court trial.