ADR

Alternative Dispute Resolution is a mechanism used in order to resolve a dispute without a court hearing.

• Court hearings are not always the most appropriate or best method of dealing with a civil dispute.
• Court cases are expensive, time consuming and can be very traumatic due to the adversarial nature of the hearing.
• Having a winner and loser often leads to the breakdown of the relationship between the parties be it business or family.
• The different forms of ADR offer the chance of avoiding some of the problems associated with court hearing.

• Costs: ADR is usually cheaper to solve disputes as there are no court costs incurred
• Speed: ADR will allow matters to be resolved more quickly than going through a court hearing.
• Control: the parties have more control over ADR rather than handing control to the courts
• Flexibility: the time and place can be arrange to suit both parties resulting in a more informal and relaxed hearing. The strict letter of the law does not need to be followed.
• Expertise: The parties can choose their own mediator/conciliator/arbitrator e.g. technical expect
• Privacy: the matter will be dealt with in private and therefore no publicity
• ADR is less adversarial than court hearings and encourages cooperation. This allows relationships e.g. business relationships, to continue (avoiding bad feeling). They are often destroyed by the adversarial nature of a court hearing.

• Unequal bargaining power: in some matters one party is able to dominate the other, for example, in employment cases or divorce. In such circumstances, a tribunal or court may be the better option.
• Lack of legal expertise: during the process a legal issue may arise and the mediator/conciliator/arbitrator may lack the legal expertise to deal with it.
• Court action may still be required: following the mediation/conciliation process, the matter may still remain unresolved and therefore will need to go to court. This takes time and money.
• Lack of enforceability: in terms of mediation and conciliation, the agreement is usually unenforceable. If one party fails to fulfill the terms of agreement, the matter may still have to go before the court.

• is a voluntary process where an impartial/neutral third part (mediator) will assist the parties in coming to a compromise solution.
• The parties control the process, with the mediator playing a passive role and acting as a facilitator, allowing the parties to reach their own agreement.
• The mediator will be in charge of the process but will not influence the outcome.
• This agreement/outcome is not binding unless formally recorded in a signed agreement.
• The process can be terminated by either party at any stage.
• A more formal method of mediation is the Formalised Settlement Conference. This involves a mini-trial, with a panel of three mediators.
• The panel is made up of one decision-making executive from each party and a neutral mediator to assist if necessary.
• A more formal approach to mediation is a 'formalised settlement conference'.

• Involves a mini trial where each side presents its case to a panel composed of a decision making executive from each part and a neutral party.
• Once all the submission have been made the executives with the help of the neutral party will try come to an agreement.
• If they cannot come to an agreement the neutral adviser will act as a mediator between them

• There is a growing number of local and national mediation services, for example:
• The Centre of Effective Dispute Resolution (CEDR), CEDR offers dispute resolution solutions to a wide range people from large businesses to small private clients
• Family Mediators Assocition - offers comprehensive family and hybrid mediation.

• is very similar to mediation in that it is voluntary and both parties must agree to submit their matter to the conciliation process.
• As in mediation, the conciliator has no power to impose their own solutions but they will play far more active role than a mediator by suggesting grounds for compromise and possible ways of resolving the issue. The final agreement is not legally binding on either part unless made so by a signed agreement.

The Advisory, Conciliation and Arbitration service (ACAS) deals with employment matters.

• Voluntary process, encourages co-operation and avoids the adversarial system.
• Both can be cheap and quick.
• Less formal than court proceedings and does not have to follow the strict letter of the law.
• Maintains working relationships and can include decisions about future dealings.
• Both parties maintain a sense of control and can choose the method of mediation
• Agreements are more likely to last as they are a compromise and in a sense 'everyone wins'
• highly successful
• private and no media exposure
• mediation and arbitration organisations have experts to assist
• 80%

• No guarantee that the dispute will be resolved.
• Will not work unless both parties are willing to cooperate and reach a compromise
• Settlements are often considerably lower than those awarded by the courts
• Agreements cannot be enforced so there is no pressures to stick to it
• Could go on for the a long time without a settlement
• Unless the mediator has the necessary qualities mediation can turn in to a bullying exercise and weaker parties may not stand up for their own rights.

• It is governed by the Arbitration Act 1996
• Its the most formal method of ADR whereby both parties will voluntarily agree to:
• allow their dispute be left to the judgement of an independent/neutral arbitrator or panel of arbitrators
• the time and place of the hearing
• the procedure for the hearings - this can range from a 'paper' arbitration to a formal court-like-hearing
• be legally bound by the arbitrator's decision - the 'Award'

• Binding on both parties
• enforced by the courts if necessary
• Can be challenged in the courts on the grounds of serious irregularity in the proceedings or on the point of law - s68 Arbitration Act 1996

• The Advisory, Conciliation and Arbitration Service (ACAS) - deals with employment matters.
• The Association of British Travel Agents (ABTA) Arbitration scheme deals with alleged breaches of contract and/or negligence between consumers and Members of ABTA in respects of holidays.

• The parties can chosen their arbitrator and appoint a technical expert if appropriate
• Use of an expert to decide avoids having to use expert witnessess
• Flexibility - the time and place of the hearing can be decided by the parties to suit their needs and is held in private
• Confidentiality
• Likely to be dealt with quicker and cheaper than the courts
• Award is final and can be enforced by the courts
• Avoidance of bad feeling between the parties

• Unexpected legal points may crop up which the arbitrator may not be able to fully take into account
• When dealing with technical points, arbitration may become highly complex
• Commercial arbitrator can take as long as the courts to complete.
• Professional arbitrators may be very expensive
• The lack of availability of legal funding may disadvantage an individual - if a person on low income they would qualified for legal aid
• Rights of appeal are more limited than the courts