Alternative dispute resolution

Question 1

Why do we have ADR and can you name the 4 main types?

Answer 1

ADR is a way of resolving disputes between people without going to court.

1) Negotiation
2) Mediation
3) Conciliation
4) Arbitration

Question 2

ADR - Negotiation - what is it and when it could be used?

Answer 2

Negotiation is when parties try and resolve problem amongst themselves.

They will make a ‘settlement’ or written agreement usually involving money.

Sometimes engage solicitors.
An example of when negotiation is used is in family disputes.

Question 3

Negotiation pros

Answer 3

Least formal (less stressful)

Least expensive.

Least time consuming.

Question 4

Negotiation cons

Answer 4

Sometimes not suitable, if parties are angry at each other and don’t want to negotiate.

May still end up in court

Any conclusion reached by this process is not legally binding.
meaning If there is an an agreement is pay a sum of money and the agreement is not met, they may have to go to court.

Question 5

ADR - Mediation - what is this and when is it used?

Answer 5

Mediation is when a neutral / independent 3rd party meets both the parties and try and help them to resolve their dispute.

A Mediator will NOT make suggestions but will instead facilitate parties to make a decision between themselves. ‘What do you think’

Often used in divorce cases.

Question 6

Mediation Pros

Answer 6

Divorce uses mediation often as it is a lot cheaper than courts.

Formal court can be very stressful.

Parties can come to solution courts can’t.

Question 7

Mediation cons

Answer 7

Any conclusion reached by this process is not legally binding.
If there is an an agreement is pay a sum of money and the agreement is not met,
they may have to go to court.

Question 8

ADR - Conciliation - What is it and when is it used?

Answer 8

Conciliation is similar to mediation but plays a more active role.

Conciliation is still neutral but will actively help to come to settlement using suggestions.

Sometimes meet parties separately and go back and forth.

Companies use this process to check how a case might work in court.

Question 9

Conciliation pros

Answer 9

Opportunity to solve issues before they go to court

Question 10

Conciliation cons

Answer 10

Non-binding opinion.
If there is an an agreement is pay a sum of money and the agreement is not met,
they may have to go to court.

Question 11

4) Arbitration - what is it and when is it used?

Answer 11

Arbitration is the most formal type of ADR - It involves an independent 3rd party who makes a decision/award.

All parties must agree to arbitration.

Process popular between companies and trade unions.

Exceptions claims that could go to the small claims courts.

Question 12

Which clause in a contract requires parties to give up their right to go to court?

Answer 12

Scott and Avery Clause - a term in the contract where they give up their right to go to court.

The Arbitration Act 1996 states that court will normally refuse to deal with any issue if the parties have agreed to go to arbitration

Question 13

Arbitration pros

Answer 13

Flexible - Choose the a time that is convenient - unlike court that sets the time.

An Arbitrator could be an expert in the field e.g someone who could explain technology if this was part of the dispute or a lawyer to explain points of law.

BINDING arbitration can make an award. If a party fails to do what is decided this will be enforced by law.

Often resolved much more quickly than court proceedings, so attorney fees are reduced.

Lower costs in preparing for the arbitration than there are in preparing for a jury trial.

Question 14

Arbitration cons

Answer 14

Limited chance to appeal - can be challenged in the King’s Bench Divisional Court where there has been misconduct.

Question 15

What other forms of ADR are there?

Answer 15

Tribunals
Omburdsmen - an official appointed to investigate individuals’ complaints against a company or organization, especially a public authority

Question 16

ADR Tribunal - What is it and when is it used?

Answer 16

Tribunals are specialist courts whose judges and members hear a wide range of cases, such as tax, employment, and immigration and asylum.

Question 17

Tribunal pros

Answer 17

The key advantages of tribunals are:

They are specialised, flexible, and accessible.

They are designed to be more informal and user-friendly than traditional courts, and they often use more informal procedures, such as oral hearings or written submissions.

Question 18

Tribunal cons

Answer 18

Strict time limits.

Details of your case are made public.

Potential high cost of a tribunal.

Very strict appeals procedures.

A stressful, lengthy process

Question 19

Looking at Alternative dispute resolution as a whole - How would you describe the main pros?

Answer 19

Cost-Effectiveness: ADR is often more cost-effective than pursuing litigation through the courts.

Flexibility and Adaptability: ADR methods, including mediation and arbitration, allow parties to tailor the resolution process to their specific needs and preferences.

Preserving Relationships: ADR focuses on open dialogue, negotiation, and finding mutually agreeable solutions.

Expedited Resolutions: ADR methods often lead to quicker dispute resolution compared to court proceedings.

Question 20

Looking at Alternative dispute resolution as a whole - How would you describe the main cons?

Answer 20

Lack of enforceability. (not legally binding)

Some ADR does involve cost.

Limited Legal Protections: ADR processes may not provide the same level of legal protections and remedies available through court proceedings.

Not suitable for Complex Disputes.

Can be a Power Imbalance between parties - employer and employee.

Question 21

How might you conclude an exam answer on ADR?

Answer 21

Alternative Dispute Resolution methods offer notable advantages. However, it is crucial to recognise the potential limitations of ADR.