Advantages and Disadvantages

• The first advantage of ADR is cost.  

  Lawyers are discouraged in ADR processes and without them some methods of ADR can even be free, for example negotiation.  Other methods involving a third party can sometimes be free, for example the service provided by West Kent Mediation.  

  Cost is an advantage because it means that access to justice is more readily available for those with a dispute who cannot afford to go to court.  
• The third parties involved in methods of ADR are often experts in the area of the dispute.  

  For example, mediators and conciliators provided by ACAS are often trained to deal with industrial disputes & workplace disputes.  ABTA arbitrators will be experts with consumer disputes.  Even on a tribunal panel there will be experts who can contribute to the decision making process.  

  This is an advantage as compared with courts where judges do not have specialist knowledge and could therefore make the process of dispute resolution longer, or inappropriate for the subject matter. 
• The speed of the process is often much quicker than going to court and is therefore encouraged by the courts.  

  Most methods are voluntary, the parties are more likely to want to compromise and therefore reach an agreement.  All except tribunals have no fixed procedure and it is up to the parties to determine how they reach a resolution 

  This is an advantage because it means that the process is efficient and parties can resolve their dispute in a timely manner and return to their day to day lives. 
• One advantage of using negotiation to resolve disputes is it provides flexibility. 

  As the decision is not strictly a legal one, sticking to the letter of the law, it is more likely to be based on commercial common sense and compromise.  Further, the parties may choose how the negotiations take place. Negotiation can be used at any point in the dispute from the beginning right up to the start of a court hearing.  

  This is an advantage because parties have control over the process and the outcome and therefore both parties can leave feeling satisfied. 
• Negotiation

  It is also much quicker to resolve a dispute through negotiation when compared with the courts. 

  As the parties do the negotiating themselves and decide on where and how the negotiations take place, it can often lead to a resolution much quicker than taking a case to court where various procedures and protocols have to be followed.

  This is an advantage because parties can get back to their lives more quickly and it is therefore less stressful than court. 
• A major advantage of using negotiation rather than the courts to resolve disputes is that it enables relationships between the parties to be reserved. 

  Parties are encouraged to compromise and work together to reach a decision they both agree with, therefore everyone wins.  A negotiated resolution can include agreement about future business deals.   This is compared with the court where the adversarial nature of the courtroom pits one party against another and decides a winner/ loser of the dispute.

  This is advantageous because parties are much more likely to work together in the future.  
• One disadvantage of using negotiation to resolve disputes is the lack of certainty that it provides for parties. 

  As the parties are required to compromise and are solely responsible for reaching an agreement there is no guarantee that the dispute will be resolved.  This is a particular issue where the parties are antagonistic, for example in divorces. Therefore, other methods of ADR or court may have to be used after negotiations.

  This is a disadvantage because parties may waste time trying to reach an agreement only to have to use another method of dispute resolution. 
• Negotiation can lead to reduced settlements when compared to any damages that may have been awarded through winning the case in court.  

  Agreed payments between parties through negotiation are the result of compromise, therefore a party who may have ‘won’ in a courtroom may end up with a lower settlement than what they deserve.  

  This is a disadvantage because parties may not get the compensation that they deserve. 
• mediation/ conciliation is an advantage as it gives parties more control than in the courts.  

  the parties have control over all aspects of the process including who the M / C is, where and when it will take place and can decide to withdraw at any time.  also have control over any compromise that has been made.  in contrast to disputes settled in court where the judge decides on the outcome, without the input of any compromise by any of the parties. advantage because parties will likely feel more satisfied with the outcome as they have determined the agreement and how they reached it. 
• Mediation/ Conciliation offers the parties more flexibility than using the courts.  

  The decision need not be a strictly legal one sticking to the letter of the law: it is more likely to be based on commercial common sense and compromise. 

  This is an advantage because the agreement will more likely be one that works in practice. 
• Major advantage of mediation/conciliation rather than court is that it enables relationships between parties to be preserved. Parties are encouraged to compromise and work together to reach a decision both agree with. Compared to court where adversial nature of courtroom pits one party against another. An advantage because parties are likely to work together in future.
• One disadvantage of using mediation/ conciliation is that there is a lack of certainty. 

  As the parties are required to compromise and are solely responsible for reaching an agreement there is no guarantee that the dispute will be resolved.  Therefore, if this happens then parties will have to go to court. 

  This is a disadvantage because it could be viewed as a waste of time and money. 
• Finally, using mediation/ conciliation can lead to a reduced settlement when compared with winning a case in court.  

  Agreed payments between parties through mediation are the result of compromise, therefore a party who may have ‘won’ in a courtroom may end up with a lower settlement than what they deserve.  

  This is a disadvantage because the party may not get the compensation they deserved.  
• One advantage of using arbitration over other methods of dispute resolution is the fact that it provides expertise.  

  If there is a question of quality this can be decided by an expert in the particular field.  The use of an expert to decide saves the necessity for expert witnesses and the time it would take in explaining all the technicalities to a judge.  

  This is an advantage because the outcome reached is likely to be informed and work in practice. 
• Arbitration is private, unlike the courts.  

  Hearings are not open for the public.  This means that any sensitive issues to be discussed during the case can be done so without fear of media attention.

  This is an advantage because parties can feel more relaxed than they would in court and this may improve the proceedings and possibly speed up the process.  
• Finally, arbitration gives parties certainty. 

  Unlike mediation and conciliation, an award will be granted, meaning there is no need to seek another form of alternative dispute resolution, or to go to court.  

  The award given will usually be legally binding, therefore if one of the parties does not stick to the agreement then they can take them to court.

  This is an advantage because parties can have confidence that their dispute will be resolved and the agreement must be adhered to.  
• One disadvantage of using arbitration is that there is no legal aid available for parties.

  Parties will have to fund representation themselves, if they choose to use lawyers.  This means that some parties, such as businesses will be able to afford better lawyers than an individual taking on a business.  

  This is a disadvantage because it could lead to an imbalance of power between parties and potentially an unfair outcome as a result. 
• There is a lack of legal expertise if using arbitration as opposed to the courts.  

  An unexpected legal point may arise in a case which is not suitable for decision by a non-lawyer arbitrator.  This limits the suitability of arbitration to deal with different disputes. However, s69 of the Arbitration Act 1999 provides an appeal route for if a point of law is in question. 

  This is a disadvantage because the dispute is binding and the parties are bound by the decision which may not be legally informed.  
• The cost of arbitration can also be a disadvantage. 

  Professional arbitrator’s fees can be expensive.  If parties opt for a formal hearing, with witnesses giving evidence and lawyers representing both sides, this can add to expenses.  

  This is a disadvantage because justice may not be accessible to all, especially given the lack of legal aid.