Disadvantages of ADR

• Imbalance of Power

  Imbalance of power, financially or emotionally, as individuals often have to take on large organisations through ADR, and often have to represent themselves e.g. an employee taking on a multi-national company such as Asda; the company will have vast financial and legal help whereas the individual will likely not. Unlike court, there is normally no public funding for ADR and as a result individuals have to cover their own costs even if they win the dispute. Also, in ADR, an individual is unlikely to present their case as well as a company who use a lawyer.
• Lack of Predictability

  ADR is not bound by the strict rules of judicial precedent so do not have to follow decisions from previous cases. As a result it is impossible to accurately predict the outcome of ADR and there is also no certainty that settlement will even be reached; for example Heather Mills & Paul McCartney’s divorce led to an unsuccessful mediation hearing. This combined with a lack of formal procedures within ADR, means that there is no consistent approach and justice for all. In relation to arbitration, the Office of Fair Trading has approved over 20 codes of practice. However there are wide variations in how arbitration hearings are conducted again leading to inconsistencies
• Poor Take Up Rate

  This has been linked to the fact that there is a lack of public knowledge and awareness of the ADR principles and therefore, most disputing parties first thought is to litigate. Professor Genn (2005) found that only 5% of disputes went through the ADR process before litigation. Another reason why this may be is as Solicitors and Barristers do not always recommend ADR to their clients. Some practitioners see ADR as a sign of weakness and that the simple threat of Court action is enough to settle a problem.
• Not Legally Binding

  Negotiation, mediation and conciliation are not legally binding unless written down which means that if the parties concerned fail to honour a settlement reached through ADR, they may end up in court anyway. This can add a considerable amount of time with two sets of legal bills to pay. Many people would prefer to go straight to litigation in the knowledge that the court will give an enforceable judgement.