ADR

• Mediation - A neutral 3rd party that gives neutral advice and views to help both parties reach an outcome.
• Advantages of mediation

  1. Both parties control the outcomes of the dispute
  2. cheaper , faster and avoids court action
  3. informal and flexible
  4. 90% win rate for mediation
  5. Avoids adversarial conflict of the courtroom
  6. Mediator agreed by both parties and is independent
• Disadvantages of mediation

  1. court only takes 1 day but mediation can take 3-5 days
  2. Not guaranteed to resolve dispute so it can still go to court action.
  3. Legal aid not available
  4. decision not binding unless both parties agree
  5. Not compulsory so it wont work unless all parties agree to it.
  6. Not suitable for all cases
  7. if parties are forced it may give a half hearted commitment to the dispute
• Conciliation - a neutral 3rd party that takes on a more active role .
• Advantages of conciliator

  1. uses a "prevention rather than cure" approach to solve disputes
  2. Conciliator has a more active role
  3. It identifies and clarifies main issues of dispute
• disadvantages of conciliator

  1. Relies on skill of conciliator
  2. can still end up going to court meaning its more expensive
• Procedure of mediation

  1. first meeting - each party puts its position forward and the process is explained
  2. Private meeting - between mediator and each party. they will ask questions to gain greater understanding of the case.
  3. second meeting - mediator assists the parties negotiating face to face
• arbitration - 3rd party that will make the decision that is legally binding for the parties in the dispute.
• arbitration act 1996 - aim of arbitration is to have a fair resolution of disputes by an impartial tribunals with any delay or expense 


  parties should be free to agree on how the disputes are resolved only to safeguards necessary in public interest
• there needs to be a reason to arbitrate - in writing = before dispute arises or when the dispute becomes apparent.
• Most business contract will involve an arbitration clause (Scott V Avery clause) where parties agree to have any dispute settled by abitration.
• if a clause exists, they have to go to arbitration and the courts will refuse the matter
• section 15 of AA96 - parties free to agree on procedure and number of arbitrators
• section 65 AA96 - result only appealed if its on a point of law or that there was a serious irregularity in the proceedings.
• disputes used usually through "paper arbitration" - submitting the evidence and argument through writing instead of oral submissions at a hearing.
• disadvantages of arbitration

  1. Legal funding not available
  2. rights of appeal are limited
  3. closest to a court hearing can be expensive when using lawyers or professionals.
  4. If an unexpected issue happens , an untrained arbitrator may mot be suitable
• Advantages of arbitrator

  1. faster , cheaper , more private than court
  2. arbitrator is a specialist in their field of work
  3. decision is binding and final
  4. Arbitration protected by statute
  5. it is flexible
  6. choose own arbitrator to decide best way to settle dispute
• Negotiation - resolving the case between the parties themselves.
• advantages of negotiation

  1. completely private
  2. quick and maintains good relations between parties
  3. its informal
• disadvantages of negotiation

  1. solicitors can make it expensive
  2. people see it as halfway and believe court could have been better
  3. settlement not agreed till end of day by wasting time and money.