Alternative Dispute Resolution Flashcards
Civil Procedure Rules
One of the main aims of the Woolf Reforms was to encourage people to settle out of court. The Civil Procedure Rules (CPR) in the Civil Procedure Act 1997 introduce 2 rules to encourage ADR.
Rule 26.4 of CPR: Allows judges to stay (suspend) court proceedings where they feel ADR should be tried first.
Rule 44.5 of CPR: If court believes ADR could have been used in a case that went to court, they can punish the party that insisted on a court hearing by penalising them in costs.
The Halsey and Steel Cases 2004
Established 3 important principles:
- The courts cannot force ADR because this is unfair and a breach of Article 6 of European Convention on Human Rights.
- The courts should encourage ADR but recognise that it may not be suitable for all parties.
- Cost penalties can be imposed on parties that have unreasonably refused to use ADR.
Negotiation
Parties negotiate directly between themselves either face to face or through exchange of letters, emails etc.
Example
In 2012, Charlotte Church settled her phone hacking claim against News Of The World through negotiation and got £600,000.
Negotiation
Advantages
Disadvantages
Advantages
- Parties can keep the dispute private.
- Dispute can be resolved quickly.
- Parties have control over discussion.
- Parties can avoid costs of going to court.
Disadvantages
- Negotiation may not work.
- There is nothing to stop a party going back on the agreement.
- Having Solicitors phone or email eachother is expensive.
Mediation
Parties can resolve the despute with the help of a neutral 3rd party called a mediator. This focuses on getting the parties to compromise and look for a common ground.
- It’s up to the parties to hire a mediator
- The parties decide when and where mediation will take place
- If it’s a contract dispute, Parties often have decided who the mediator will be if things go wrong and written it into the contract.
Examples of where Mediation is used
Neighbour Disputes: West kent Mediation Service
Small Claims Mediation Service: Free for those involved in a defended smal claim, often resolved over telephone but face to face mediation can be arranged.
Mediation in Divorce Cases: Anyone contesting terms of divorce must attend a Mediation Information and Assessment Meeting (MIAM). If they agree to mediate, legal funding is available.
Court of Appeal Mediation Scheme (CAMS): Mediation for personal injury cases where no more than £100,000 is at stake. Parties will be referred to CEDR ( Centre for Effective Dispute Resolution) which will contact parties and invite them to attend mediation.
Mediators are often lawyers but can come from other professional backgrounds e.g. Accountants, Engineers, Architects or Surveyors. Mediation isn’t binding but a mediation agreement can be drawn up which can be enforced in court under the law of contract.
Mediation
Advantages
Disadvantages
Advantages
- Use of a neutral 3rd party takes all of the anger out of communications.
- Parties don’t have to speak face to face, they are often in seperate rooms with the mediator delivering messages and putting forward positive points.
- Parties have control over when where mediation takes place and who mediates.
- It’s more informal, Parties have more control.
Disadvantages
- It may not work.
- One side can feel like they’ve lost and not stick to the deal.
- Business relationships could be ruined.
Conciliation
The nuetral 3rd party does the same job as a mediator but they have a more active role and can suggest grounds for comrpomise or settlement.
Example of Where Conciliation is Used
ACAS (Advisory, Conciliation and Arbitration Service) offers pre claim Conciliation (PCC) and Conciliation for employment cases. ACAS conciliators have a background in industry, e.g. involved in Trade Unions, and can suggest ways of resolving disputes using their own past experiences.
Conciliation
Advantages
Disadvantages
Advantages
- Neutral 3rd party with industry knowledge means they can suggest solutions.
- Same advantages as Mediation.
Disadvantages
- It may not work.
- It’s not legally binding, may still need to go to court.
- If one party doesn’t feel like they’ve made a good deal, they can go back on the agreement.
Arbitration
The oldest form of ADR and governed by statute.
Arbitration Act 1996 Says:
- Objective is to obtain fair resolution by an impartial tribunal.
- Parties should be free to agree how the dispute is resolved, subject only to safeguards e.g. public interest.
- In matters governed by act, court shouldn’t interfere except as provided by this part.
Act minimised interferene of the court.
Arbitration is the most formal method of ADR and most court like. The arbitrator ajudicates and imposes their decision on the parties. Arbitration is legally binding.
Commercial contracts use Arbitration often. When a contract is drawn up, Using Arbitration to solve disputes can be put into the contract. This is known as a Scott v Avery Clause.
Small Claims Arbitration
Private Arbitration
Small Claims
- Held in county court, Arbitrator is District Judge.
- Claim heard within 8 weeks
- Parties meet in side room of court building and tell judge their side of the story. They can bring evidence but disputes rarely involve witnesses.
- Both sides can bring Lawyers but it is discourged by rule that sides must pay own costs.
- Each side can ask the other side questions directly, they cross-examine each other.
- Once the judge has heard all the arguments, he will make a decision that is legally binding.
- There is a chance to appeal but only on a Point of Law.
Private Arbitration
Parties agree to let Arbitrator make binding decision. Often used in:
- Commercial cases
- High Profile Sport cases
- Consumer Contracts
- Industrial Disputes over Pay and Conditions.
Arbitration
Advantages
Disadvantages
Advantages
- Parties can choose their own Arbitrator.
- It saves time and money.
- The matter is dealt with in private.
- Allows for commercial relationships to continue.
- It is legally binding.
Disadvantages
- Small Claims seen as ‘Poor Mans Court’, Cheap Judge means Points of Law are often not adresses or even identified.
- Legal Representation is not banned, which leaves the other side at a disadvantage.
- Cross-examination is allowed, lawyers will put forward a better case.
- Court isn’t that informal.
- Legal Aid isn’t available.
