13. ADR

• Lord Woolf's Civil Procedure Rule recommeded that litigation be the last resort, and that people should try to resolve their disputes using ADR.
• Before ADR, parties must negotiate by discussing their issues with each other
• Mediation (type of ADR)


  Involves mediator who attempts to find common ground between parties. Mediator acts as messenger taking offers, no opinion given.

  1. Evaluative mediation = provides parties strengths and weaknesses
  2. Facilitative mediation = mediator offers no strengths/weaknesses. Will insist that parties negotiate agreement.
• Conciliation (type of ADR)


  Where conciliator makes suggestions for solutions, playing an active role in resolution.

  Often used in industrial and employment.
• Arbitration (type of ADR)


  Most formal governed by s1 Arbitration Act 1996. Arbitrator to resolve dispute by making a legally binding decision.

  Arbitrator usually an expert in particular field.
• Chartered Institute of Arbitrators is the leader in the provision of arbitration for consumer disputes.

  S15 allows parties to choose number of arbitrators.
• Arbitration Process


  Paper Arbitration - parties write case on paper, submit to arbitrator for him to reach a decision.

  Formal arbitration - parties attend a hearing making oral submissions, then send documents.
• Tribunal = body that performs a function similar to that of a court but is not a court of law. Created with the rise of the Welfare State (giving people rights, leading to dispute).
• Parties use tribunals because they do not have a choice. Cannot be appealed. Parties use ADR because they are choosing not to use the court system.
• Tribunals are controlled by the High Court.
• Before Tribunals were reformed, there were 3 types:

  1. Administrative - to review government decisions
  2. Domestic - deal with internal workings of an organisation
  3. Employment - disputes between employees and employers
• Reforms of Tribunals

  Franks Committee recommended that tribunal procedures should be an example of 'openness, fairness and impartiality' in Tribunals and Inquiries Act 1958.

  Coucil of Tribunals set up to supervise and review tribunal procedures.
• Now there are 2 general tribunals:

  1. First Tier Tribunal which deals with first-instance claims (rent, leasehold)
  2. Upper Tier Tribunals that hear appeals (social security, mental health, war, special education needs)