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Alternate dispute resolution (ADR) - Coggle Diagram
Alternate dispute resolution (ADR)
What is ADR ?
Why no got to court ?
Litigation is:
Risky and the outcome cannot be predicted.
Expensive
Stressful
Lengthy
Lord Woolf
in his
Access to Justice Report
identified a number of problems with going to court, including too much uncertainty with the difficulty of forecasting cost and length 'includes the fear of the unknown'
Alternative to the litigation method (e.g, legal proceedings
Available in civil proceedings between parties
Not available in criminal proceedings or public law matters
Arbitration
Most formal process governed by the Arbitration Act 1966 (AA)
S1 (a) AA
" The object of arbitration is to
obtain the fair resolution of disputes
by an impartial tribunal without unnecessary delay or expense "
S.33 (1) AA
"Tribunal shall (a) act
fairly and impartial
as between the parties...... and (b)
adopt procedures
suitable to the circumstance of the particular case
Arbitrators
Qualified legal professionals
Do not have to be 'authorised persons' under the
Legal Services Act 2007
Do need substantial experience of the subject matter
Arbitration is
similar to judicial proceedings
Witness gives evidence and parties are legal represented
S.15 AA
Parties are free to agree on number of arbitrators
Multiple: Arbitral panel or Arbitral tribunal
No agreement - just a sole arbitrator
Losing party to pay the cost,
unless it would be unjust
The Arbitration Clause
Most
commercial contracts contain clause
which will state what happens if there is a disagreement about the contract.
*Clause will refer the parties to arbitration.
Parties can choose the arbitrator, but the
decision is binding
which
cannot usually be appealed.
S.68(1) (AA)
any appeals require an agreement of the parties or leave of the court and are based on a question of law.
S.68 (AA)
Requires serious irregularity affected the tribunal proceedings or award for appeal.
Methods of ADR
Negotiation
Two parties settle a dispute
without help from a third party
and can be instigated (for example), by a company's lawyer advise to settle
Paties will reach a legal agreement
without having to start legal proceedings
, however negotiation can take place anytime after legal proceedings have, but before the court has reached a decision.
Is legally binding
(The Civil Procedure Rules under litigation which encourages parties to settle a claim)
Mediation
Benefits of mediation
Break down the barriers between the parties to
overcome the difficulties they may face
Flexibility
due to the informal process
Outcome can be flexible
Minimises conflicts
between parties
Privacy due to the informal process
and is firmly established in divorce (mandatory) cases, negligence claims, trust and probate disputes ect.
Voluntary nature of mediation
Arguments for ?
Minimises conflicts and helps maintain relationship between the parties
Eases pressures on the court
Benefits such as cost savings to the public/parties
Arguments against (mediation being made compulsory) ?
Create barriers between the parties and inhibit the negotiation process
*Prolong dispute ? Denying access to court and the right to fair trial under 6 ECHR ?
Must be consequences for parties who unreasonably refuse to mediation
Parties engage the services of independent third-party mediators.
Parties will share the cost of the proceedings
Requires the voluntary participation of each party in the dispute with the aim to mutually reach an agreement.
An informal process
Mediator does not:
Express their own view with the merits of each party's case
Cannot impose an agreement
Agreement reached can be
made into a binding contract
Enforced by court proceedings (in the county court)
Parties don't have to reach an agreement on every aspect of the dispute (partial agreement), however if no agreement, the content
Conciliation
Similar to mediation
Key differences
Mediators will
try find common ground
between parties
No responsibility for developing or making proposals for settlement.
Conciliator takes a
more interventionist role.
Weighing up each parties position, offering opinions on proposals regarding the terms of settlement and parties decide to accept the proposals.
Conciliator to be familiar with subject matter of the dispute.
Enforceable same way as mediation (made into contract, enforceable by the courts)
Costs are shared
The Advisory, Conciliation and Arbitration Service (ACAS)
, administers an early conciliation scheme in most forms of employment dispute.,
Early neutral evaluation (ENE)
Neutral, expert with viewpoints for a starting point for negotiations to settle the dispute.
Parties agree to appoint an independent evaluator to assess each sides strengths and weaknesses
Does NOT result in a final decision
Does
not decide legal issues or advocate to solve matters,
simply to indicate what each party can rely on in court if proceedings are to take place (incentive to find agreement
Outcome is
non-binding and carried out 'without prejudice'
What is disclosed cannot be relied on in court
Pros and Cons of ADR
CONS
Uncertainty:
What if the parties don't comply with the agreement ? Will have to be enforced in court.
May not succeed
and litigation will follow in any event
Legal aid not available
to fund the costs
won't be cheaper/quicker if agreement is not reached
Other party MUST agree to participate
PROS
Flexible outcome:
Parties can agree something that the court has not power to order (e.g., payments in instalments)
Does not
further undermine relationship
between the parties
Privacy as the hearings are not public:
Commercial reputations protected
Generally cheaper and quicker
Parties can choose the date and location of ADR.