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Alternative Dispute Resolution (Arbitration (Advantages (parties can…
Alternative Dispute Resolution
What is it?
a means of solving a case without going to court
alternative method of settling legal disputes between parties outside of the court
4 types of ADR
inexpensive and provides a more favourable outcome for both parties
Negotiation
the most common form of ADR
underpins all other methods
the parties come to a decision between themselves
can be verbal or written
e.g. a parking or fence dispute between neighbours
Advantages
cost effective (cheapest method)
private
quickest
preservation of relationships
Disadvantages
cost effective until parties feel they need solicitors
no guarantee of success
breakdown of relationships
one party may be more knowledgeable/forceful than the other
can easily walk away - not binding
if parties cannot agree, they can instruct their solicitors who will try and settle
lawyers will try and negotiate even if court proceedings have commenced
Mediation
involves a neutral third party
the third party will consult with each party and try to find common ground, taking offers between the parties
the mediator is not expected to give their opinion but can if asked
very appropriate in family cases as families are asked to give evidence that they have attended a Mediation Information and Assessment Meeting (MIAM) unless they fall within an exception
e.g. domestic violence
most appropriate where there is still a chance of cooperation between parties
mediator will listen to both confidentially and come to a conclusion that takes both parties into account
Centre for Effective Dispute Resolution is used by big companies including top law firms
businesses say using this has saved them several thousands of pounds in court costs
£1-£1.5k a day for a mediatior
court cases frequently over £100k
in one year they were involved in over 10,000 commercial mediations, totalling around £10.5 billion
there are also smaller services such as West Sussex Mediation Services
there is also a more formal method of mediation known as a 'Formalised Settlement Conference'
a panel of an executive from either side and a third neutral party who will hear the case in a 'mini-trial' and come to a decision
even if no decision is made, can narrow down court time
Advantages
faster than court as it is private
cheaper
maintaining relations is easier
based on more common sense/commercial common sense as opposed to the letter of the law
avoids winner/loser result of court
Centre for Dispute Resolution claims over 80% cases are settled
Disadvantages
no guarantee - could end up spending time and money and still go to court
parties need to be willing to cooperate
requires a skilled mediator
usually a settlement will be less than what would be awarded in court
no formal rules
mediator may not be as skilled as a lawyer
not binding
voluntary process that relies on cooperation of parties to appoint a person who can impartially facilitate and resolve the dispute
Conciliation
very similar to mediation but the conciliator plays a more active role and will usually suggest grounds for agreement and an outcome for a settlement
however, does not make the final decision
generally the parties do not meet face to face
third party plays an active role making independent decisions, but parties are not bound by these
creative process as parties can choose from a variety of options in determine an outcome
even if it results in court proceedings, conciliation will be useful in recognising and simplifying issues so it can be dealt with effectively
Advantages
faster than court
cheaper
voluntary
private
involvement of a third party - remove tension and help with clarity
Disadavantages
no guarantee - could still go to court
parties need to be willing to cooperate
no formal rules
no binding decision
involvement of a third party can lead to bias towards one side
Arbitration
governed by :black_flag: s.1 Arbitration Act 1996
voluntary agreement by the parties to submit their dispute to someone (other than a judge)
decision to arbitrate can be made at any time - even prior to a dispute arising
:red_flag: Scott v Avery
courts can refuse to hear a case if there is a pre-made agreement to try arbitration first
the arbitrator is usually someone with expertise in the field of dispute
if the dispute is law, could be a lawyer
the arbitrator can be chose by the parties freely, and they can have either one arbitrator or a panel of a few
there is also the Institute of Arbitrators which provides trained arbitrators ready for disputes
arbitrator makes an 'award' which is binding
Advantages
parties can choose the arbitrator, more control
arbitrator is an expert in the field, no need for expert witnesses
time and place arranged to suit both parties - flexibility
private, cheep, quick
award is binding
Disadvantages
no legal aid for arbitration so could lead to unfair footing
professional arbitrator fees may be high
legal point may arise that arbitrator cannot deal with
can be forced into it
no rights of appeal if unhappy
usually used for more serious disputes involving major corporations, employment rights and consumer disputes
matters kept confidential and therefore preserves the clients reputation