ADR

• Alternative dispute resolution (ADR)


  Means of resolving a dispute without having to go to court
• The use of ADR is encouraged by the civil procedure rules which was a result of the Lord Woolf report
• Methods of ADR

  • Negotiation
  • Mediation
  • Arbitration
  • Mitigation
• Negotiation

  Solving the dispute with the parties directly
• Negotiation

  • Mostly used in family cases and neighbour disputes like noisy neighbours or parking disputes
  • Could involve solicitors that result in a settlement before the court date
  • The biggest method of ADR as it's completely private, easy and has minimal costs
• Negotiation case

  • The case of Charlotte Church where she managed to negotiate £600,000 against news of the world for hacking into her phone
• Mediation

  Mediation involves having a third part known as the mediator who is there to take the heat out of the dispute.

  This is popular in family cases like divorce or child custody.

  The mediator cannot suggest ways to compromise as the parties must be encouraged to make their own decisions.
• Mediation case

  Mediation is starting to become a compulsory form of ADR which is seen in the case of Dunnett v Railtrack where Railtrack refused to mediate. In court Railtrack won however, the court of appeal refused to make an award of costs in its favour because Railtrack had refused ADR in the first place.
• Mediation - MIAMS

   In 2012 there was the introduction of MIAMS which are mediation information assessment meetings and this is a compulsory meeting for all divorcing couples. However, this doesn't work for all cases, for instance a domestic abuse case. 
• Conciliation

  Involves a third party, the conciliatory, taking a more active role in suggesting ways to come to a settlement
• Conciliation used in

  • Industrial disputes
  • Commercial disputes
• ACAS

  The biggest conciliatory body where it provides trained conciliators from within your industrial disputes
• Conciliation

  • Prevention rather than cure approach
  • Used in access to services for the disabled
• Conciliation

  Can be used to prevent industrial strikes
• Arbitration

  The oldest and most formal method of ADR (Alternative Dispute Resolution)
• Arbitration

  • Governed by the Arbitration Act 1996
  • Award is legally binding on the parties
  • Most common in commercial contracts and sporting disputes
  • Flexible procedure
  • Parties can choose a specialist in the field or legal professionals as an arbitrator
  • Must be carried out in a judicial manner in line with natural justice
• Example of arbitration

  • Scott v Avery clause - an agreement to arbitrate before court
  • by signing this contract You have agreed to go to arbitration instead of court
• Negotiation- disadvantages

  • Parties can go back on agreement as not legally binding
  • Parties may not agree during negotiation so have to go to court anyway
• Negotiation- advantages

  • Most informal
  • Most quick
  • Most cost-effective – can be free
• Mediation- advantages

  • Avoids confrontations
  • Maintains relationships (can be friends/partner even after the ADR)
  • Parties choose mediator themselves
  • Mediator is independent
  • MIAM scheme does not apply to domestic violence case so protects victims
• Disadvantages of Mediation

  • Successful mediation can take longer than court (mediation is usually 3-5 days, and court can be only 1 day)
  • If legal point arises then no one to help resolve it and parties will have to go to court
  • Mediator cannot force parties to agree
• Advantages of conciliation

  • Conciliator plays an active role to resolve dispute
  • Services like ACAS provide specialist conciliators with industry knowledge
  • Discussions are private
• Disadvantages of conciliation

  • Can be costly if private conciliator is hired
  • Parties may not agree during conciliation so have to go to court anyway
• Advantages of Arbitration

  • Hearing takes place at time and venue of the two parties' choice
  • More private than court
  • A legally binding decision under the Arbitration Act 1996
• Disadvantages of Arbitration

  • Appeal route is limited – can only appeal on Point of Law and not actual decision of tribunal judge
  • Professional arbitrators are expensive
  • Delays for commercial arbitration can be longer than actual court itself