Law

• Using the courts to resolve disputes can be costly, in terms of both money and time. It can also be traumatic for the individuals involved. There are four methods of ADR: arbitration, mediation, negotiation, and conciliation. 
• Negotiation


  An attempt to come to an agreement or settlement between parties who have a dispute
• Negotiating

  1. Face to face talking

  2. Writing

  3. Phone or email

  4. Any other suitable method
• Negotiation


  • Can be conducted by the parties themselves, their representatives, their lawyers or any combination of these
  • The agreement can be verbal or more formally set down in writing
  • Can take place right up to a court hearing
• Negotiation costs


  The involvement of lawyers may be costly
• Negotiation can be carried out by the parties themselves and shouldn't cost them anything
• • Cheaper than taking a case to court.
  • Can just involve the parties themselves.
  • No need to use lawyers- so low or no cost.
  • The parties are in control.
  • Relationships between the parties are preserved.
  • Continued business relationship.
  • The decision doesn’t have to be legal as so offers flexibility.
  • Quicker and easier to arrange a resolution than going to court.
• • One of the parties might not be prepared to negotiate with the other.
  • One of the parties may be hostile towards the other.
  • Parties can’t be forced to engage in the process.
  • Either party may believe they’re right and not prepared to settle.
  • Court proceedings may be the only way to settle the dispute- one party may insist on court.
  • The claimant will likely get a lower amount of compensation compared to a court settlement.
  • There’s no legal funding available for claimants.
• • Cheaper than a court case.
  • The parties have control over the process and will be encouraged to reach a settlement themselves.
  • Future business and personal relationships can be maintained as it is not as confrontational as court. 
  • Parties don’t need to use lawyers but can if they choose to.
  • It’s quicker and easier to arrange.
• Mediation

  1. Neutral mediator helps parties reach a solution to the dispute

  2. Parties sometimes in separate rooms or locations, mediator acts as a facilitator

  3. Parties can attend mediation together in family disputes where there’s been no domestic violence

  4. Parties have control over the process, can stay as long as they wish and can withdraw at any time

  5. Mediator will not offer an opinion unless asked

  6. Successful mediation depends on both parties embracing the concept and actively participating

  7. Parties themselves will reach a compromise and agreement acceptable to both
• Uses of mediation


  • Family disputes over children and financial issues
• Parties have to show they have attempted mediation before starting court proceedings
• Charities offering mediation services

  • Relate
  • Centre for Effective Dispute Resolution (CEDR)
• Centre for Effective Dispute Resolution (CEDR) promotes mediation as an effective form of ADR and provides training for mediators
• Mini trial


  1. Each side presents its case to a panel composed of a neutral party plus a decision-making executive from each party

  2. Executives, with the help of a neutral advisor, evaluate the two sides’ positions and try to come to an agreement

  3. If executives cannot agree, the neutral advisor acts as a mediator between them

  4. This procedure may narrow down the issues so that if the case goes to court, it won’t take so long
• Over 80% of cases are settled through mediation
• • One of the parties may be unwilling to take part in the process.
  • The parties may be unwilling or unable to reach a settlement.
  • The result is not binding which means one party might go back on the agreement.
  • The claimant might get a lower settlement than in court.
  • There are still costs involved.
  • There’s no legal aid available.
• • Cheaper than court action.
  • The parties have some control choosing the conciliator and the process.
  • Future business relationships can be preserved.
  • It’s less formal than court.
  • Lawyers aren’t necessary but can still be used.
  • This is less confrontational than court.
  • It’s quicker and easier to reach a resolution.
  • The decision is legally binding and so can offer the parties some flexibility.
• • The conciliation may force a resolution on one or both of the parties.
  • The process may not result in resolution.
  • The result may not be binding on one or both of the parties.
  • The claimant may receive a lower award than in a court case.
  • There are still some costs involved.
  • No legal funding is available. 
• Conciliation

  A neutral third party helps to resolve the dispute by discussing the issues with parties and suggesting grounds for compromise or settlement
• Both parties must agree to a final compromise
• The process may not lead to a resolution, especially if one or both of the parties are fixed in their position
• Parties still have control over the process and may withdraw at any time
• ACAS tries to encourage the parties in an employment dispute to reach a settlement before a claim can be issued in an employment tribunal
• ACAS gets involved in industrial disputes, for example, if a trade union calls a strike action, ACAS will attempt to conciliate between the parties to reach a compromise</b>
• Conciliation doesn't necessarily lead to a resolution
• It may be necessary to continue with court action
• • Cheaper than court.
  • The arbitrator will be qualified and experienced.
  • The arbitrators decision is final and binding.
  • The decision can be enforced in court.
  • The parties can set the form for the process and it’s less formal than court.
  • Lawyers aren’t always needed- cheaper and less adversarial.
  • Quicker and easier resolution than court.
  • Hearings are in private- reduces embarrassment. 
• Arbitration


  1. Both parties voluntarily agree to let their dispute be left to the judgement of a neutral arbitrator or a panel of arbitrators

  2. The arbitrator will normally have experience in the field of the dispute
• Arbitration agreement


  Agreement providing for arbitration, usually in writing and contained in the initial contract between the parties before any dispute arises
• Arbitration clause in an initial contract is called a Scott v Avery clause
• Agreements governed by the Arbitration Act (1996) state that a court will normally refuse to deal with a dispute when there’s a Scott v Avery clause
• Selection of arbitrator

  The initial agreement will either name an arbitrator or provide a method for choosing one. If there’s no selection procedure, a court may appoint an arbitrator
• Common contracts with Scott v Avery clause

  • Building contracts
  • Package holiday contracts
  • Mobile phone contracts
• Procedure for dealing with the dispute

  1. Agreed upon by the parties, ranging from 'paper' arbitration to a formal court-like hearing

  2. Date, time, and place of any hearings are decided by the parties in conjunction with the arbitrator

  3. Any formal hearing will be held in private
• Legal representation is not always necessary in arbitration, saving parties the expense of employing lawyers and likely to be less confrontational
• Arbitrator's decision


  Called an award, final and binding on the parties, can be enforced by the courts, can only be challenged if there’s serious irregularity in the proceedings or on a point of law
• • The process can be formal and complicated.
  • It’s likely to be more expensive than other forms of ADR..
  • It’s not a suitable process if there’s a complicated point of law involved.
  • The claimant might get a lower award.
  • No legal aid- this is especially problematic if going against a business who is likely to be represented.
  • Unrepresented claimants might be disadvantaged if an unexpected legal issue arises.
  • There are limited rights of appeal- it can only be made on the grounds of a serious irregularity.
  • Any appeal is likely to require a lawyer and will involve further cost. 
• Tribunals exist alongside the court system. Some matters have to be heard by a tribunal and cannot be dealt with in court. Employment tribunals deal solely with employment issues, but there are other tribunals which deal with specific issues such as landlord and tenant claims.
• Created by the Industrial Training Act (1964) but now governed by a mixture of primary legislation (e.g. The Employment Tribunals Act (1996) and secondary (e.g. The Employment Tribunals (Constitution and Rules of Procedure) Regulations (2013)). An employment tribunal sits in a separate building and has a set process, but this is less formal than a court- no wigs or gowns are worn.