Alternative Dispute resolution (Advantages of ADR (less cost compared to…
Alternative Dispute resolution
What is wrong with going to court?
Lord Woolf wrote a report called Access to Justice: Final Report (July 1996).
Too expensive: legal fees, cost to bring the claim to cost, cost to appeal.
Too unequal: wealthy companies hiring top lawyers versus poor individual
Too uncertain: hard to predict cost, time and outcome
"....in litigation one sides ‘wins’ and one side ‘loses’." (Lord Chancellor’s Department ADR – A Discussion Paper 1999).
Usually any pre-existing relationship is destroyed or its like reaaaaalllly awkward afterwards ....
Not flexible and can result in an outcome which no one is fond of, but you cant do anything about it because the decisions at court are BINDING.
Publicity: as most court hearings are open to the public this can cause some issues with certain parties.
From 1940s, law has expanded and now covers areas of law that courts were not set up to hear e.g. employment law; Tribunals were created to hear disputes on these specific areas of law.
Why tribunal instead of court?
Tribunals specialise in one subject area e.g. employment law, construction law, disputes against the government such as immigration, mental health;
Tribunals often have lay members (non-legally qualified) hearing a dispute alongside a legally qualified member;
More informal than court
Traditionally cheaper and less time consuming than courts although this difference is disappearing
“Arbitrators typically aim to resolve disputes as to a contract
When parties start arbitration proceedings, they give the arbitrator power to resolve the dispute for them
If parties do not like what the arbitrator has decided, they cannot challenge it as that decision is binding (like a court decision).
Arbitrators are experts in the matter of the contract and don't have to be lawyers but have to have strong legal knowledge
“Mediation can be defined as the process whereby a neutral third party, the mediator, helps both sides to a dispute to come to a mutually acceptable agreement.” (Wilson, Rutherford & Storey);
Both parties must agree to mediate and the process is voluntary; except in divorce cases where attempting mediation is a compulsory step (from April 2014) before applying to court.
Role of the mediator
Assist parties with negotiations on how to settle the dispute;
Break down barriers between the parties and help them to overcome difficulties;
Improve communication between parties and help to re-build a relationship.
Parties retain control of how to resolve their dispute (contrast with arbitration) and the mediator cannot enforce a solution
Advantages of ADR
less cost compared to courts
Allows relationships to be maintained
Has less animosity attached to it
Disadvantages of ADR
Can end up going to court anyways
No legal aid available
No system of precedent