ADR

• Negotiation

  where 2 parties resolve their dispute without referring to 3rd party assistance. May be informal, e.g. 2 individuals resolving a dispute face to face,

  Or may be formal such as asking qualified negotiators (sometimes solicitors) to act on behalf of the parties,
• Mediation

  Uses a neutral 3rd party who facilitates discussion between the parties.

  The mediator will consult each party to try to establish common ground.

  The mediator does not give their opinions (unless asked) leaving the parties in control.

  The decision is not legally binding.

  Often used in family cases.
• Conciliation

  The neutral third party (the conciliator) plays an active role in assisting parties to resolve their dispute.

  The conciliator will make suggestions, such as areas for compromise and a possible basis for settlement.

  The decision is not legally binding.

  Often used in employment disputes.
• Arbitration

  The voluntary submission of the parties to the dispute being dealt with by an independent 3rd party chosen by the parties.

  The 3rd party will make a legally binding decision called an ‘award’ under the Arbitration Act 1996.

  The decision can only be appealed against in ‘exceptional' circumstances.

  Decisions to arbitrate can be made before or at the time of a dispute.

  Heard in private

  Often used by businesses.
• Advantages of Negotiation

  -Don’t need lawyers

  -Can be used at any time.

  -Cheapest and quickest form of ADR

  -Parties could include an agreement about future business deals.
• Disadvatages of Negotiation

  -May not be successful and will need to go to court

  -May not work for all disputes

  -Can drag the case out

  -May get less than if the case goes to court
• Advantages of mediation

  -Parties are in control and both must agree for decision to be made

  -As parties reach agreement together they may be able to continue dealing with each other

  -Avoids having a winner and loser as they compromise.

  -High success rate

  -Avoids conflict particularly in family cases
• Disadvantages of Mediation

  -If cannot resolve through mediation may end up going to court and can add to cost/delay.

  -May take advantage of the weaker party to get them to agree.

  -Often settlements agreed are less than they would get in court.

  -Not suitable for all type of dispute e.g. where there has been domestic abuse

  -Not legally binding
• Advantages of Conciliation

  -Agreement of both parties must be given

  -Based on compromise and common sense

  -Parties may be able to continue dealings after

  -Avoids conflict of court

  • Conciliator can give their opinion
• Disadvantages of conciliation

  -May still end up in court

  -Often relies on skill of conciliator

  -Likely to get less than if they went to court

  -Not legally binding
• Advantages of Arbitration

  -Parties agree on arbitrator and time and place

  -If arbitrator is an expert this saves money on expert witnesses

  -Private hearing

  -Quicker and cheaper than court

  -Award is final and can be enforced through the courts.
• Disadvantages of Arbitration

  -No legal aid available so parties may be unequal.

  -Arbitrator may not have legal expertise

  -Fees can be expensive if parties use formal process and professional arbitrator

  -Limited right of appeal

  -Delays are increasing
• Overall Advantages of ADR

  Most types of ADR are non-adversarial, and the parties are encouraged to cooperate and compromise. This is better for the parties’ relationship and any future dealings.  It avoids the winner/loser scenario of court and leads to less bad feeling.
• Cost

  ADR is cheaper than court.  There may be some costs but unlikely to be as high as court costs.

  Do not always need lawyers which keeps the cost down.

  Fees are cheaper than court fees.
• Specialist help

  ADR has specialist organisations that can help advise and guide parties such as ACAS.  This allows for a more proactive way of dealing with a civil dispute.

  The mediators and conciliators are trained specifically in this role and will be experts in the area under discussion.

  The arbitrator is often an expert in the matter being decided.
• Speed

  ADR tends to be quicker than court hearings.  There are less delays and waiting for court dates to be set.

  Most ADR can be dealt with quickly without the formality of court.  There are no strict rules of disclosure of evidence and witnesses, making the whole process quicker.
• Less stress

  ADR is a less stressful way of dealing with a civil matter.  Most types of ADR are informal and there is no formal court hearing.

  They are all held in private away from unwanted publicity.
• Flexible

  ADR allows for flexibility. Parties can choose where and when they want the dispute solving to take place. They can try and fit hearings around everyday life.
• Overall disadvantages of ADR

  •Unless there is an arbitration clause in a contract, ADR is a voluntary process.  Either party can refuse to continue and the case may end up in court, increasing delay and cost

  •Research has shown the many claimants settle for less than they would have got in court.

  •No legal aid which may disadvantage those who represent themselves.

  •Only arbitration is legally binding.

  •Limited rights of appeal in arbitration cases.