ADR

Question 1

what is ADR?

Answer 1

A way of solving a legal dispute without going to court

stands for ‘Alternative Dispute Resolution’

Question 3

what are the different types of adr

Answer 3

• negotiation
• mediation
• concliliation
• arbitration

Question 4

describe negotiation

Answer 4

• Dealing directly with the individual/organisation
• Usually the first step in a dispute
• Approach other side with your complaint and what you want addressed – other side does not have to agree before you approach them.
• The process is not binding
• A common example is settlement discussions between solicitors. More than nine out of ten legal claims are settled without needing a trial.
• The person acting for you is not independent and represents your interests only.

Question 5

describe mediation

Answer 5

A neutral mediator helps parties reach a compromise solution however it is only suitable if parties can cooperate.
* facilitates discussions between the parties
* can be done anywhere, process is flexible
* can have one mediator or several

• mediation services – growing number of commercial ones e.g. Centre for Dispute Resolution (Set up in 1991)
• most of the big law firms are members of CEDR
• 2016 – Over 10,000 commercial mediations took place by CEDR worth £10.8 billion
• some are also free for example ‘West Sussex Mediation Service’ – deals with workplace and family disputes
• The Family Law Act (1996) places a greater emphasis on mediation – encourage it in divorce cases

Question 6

describe conciliation

Answer 6

• similar to mediation, uses a neutral third party who helps resolve the dispute however the conciliator will play a much more active role than in mediation.
• conciliation like mediation however does not necessarily lead to a resolution
• an example is the Advisory Conciliation Arbitration Service (ACAS) who can give an impartial opinion on the legal position.

Question 7

what is arbitration governed by?

Answer 7

Arbitration Act 1996

Question 8

what does Section 1 of the Arbitration Act 1996 state?

Answer 8

(a) the object of arbitration is to obtain the fair resolution of disputes by an impartial tribunal without unnecessary delay or expense.

Question 9

how many cases a year go to arbitration?

Answer 9

Around 10,000

Question 10

Agreement to arbitrate

Answer 10

Can be made by the parties at any time.

Many commercial contracts contain a ‘Scott v Avery’ clause where the parties in the original contract agree that in the event of a dispute arising between them, they will have it settled by arbitration.

If there is an arbitration agreement, the Arbitration Act 1996 states that the court will normally refuse to deal with the dispute (unless a consumer claim where the dispute can be settled in the small claims track).

Question 11

The Arbitrator

Answer 11

s15 of the Arbitration Act 1996 states that the parties are free to agree on the number of arbitrators (may be a panel of 2 or 3 or just one arbitrator)

If the parties cannot agree, the Act stipulates that one arbitrator must be used

Also states that parties are free to decide on the procedure for appointing an arbitrator.

There is also the Institute of Arbitrators which provides trained arbitrators for major disputes.

Court can be asked to appoint an arbitrator if there is no agreement

Question 12

The arbitration hearing

Answer 12

• Many forms, as procedure left to parties (may be paper only, or paper and oral etc)
• Witnesses can be called to give evidence.
• Great flexibility for the parties to decide on the date, time and place of the hearing.

Question 13

The award

arbitration

Answer 13

• Decision made by the arbitrator.
• It is binding on the parties.
• It can be enforced by the courts.
• The decision however, can be challenged in the courts under Section 68 of the Arbitration Act 1996.