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1) Why do we need ADR?

There are a number of problems in using the courts,i.e. litigation is:

1) Expensive and slow

2) Many disputes are of a highly technical nature

3) Intimidating

4) Adversarial

5) Solutions are imposed

6) It usually leads to a loss of good relations between the parties

7) Public

8) There is insufficient capacity

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What are five main types of ADR?

1) Negotiation

2) Mediation

3) Conciliation

4) Arbitration

5) Tribunals

2) ADR

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3) Negotiation

Negotiation is defined as an informal method of bargaining by the parties to settle a dispute

We’re just negotiating

It involves the parties communicating with each other, sometimes with solicitors

What is negotiation?

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3) Negotiation (cont)

What are the advantages of negotiation?

Quick

Cheap

Private

What are the disadvantages of negotiation?What are the disadvantages of negotiation?

No guarantee it will be successful

Costs increase if solicitors become involved

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4) Mediation

Mediation is defined as a process by which a neutral third party tries to get those involvedin a dispute to reach a compromise solution

However, the parties are in control

The mediator is merely a neutral facilitator, or a go-between, i.e. helping the parties to reach a compromise

Ok you guys, I’vefacilitated shake on it

What is mediation?

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4) Mediation (cont)

What is the procedure for mediation?

a/ There is an initial meeting

b/ Followed by private meetings, when the mediator will explore the position with each party in turn carrying offers to and fro

c/ Finally a second meeting helps the parties negotiate face to face.

If the mediation results in a written agreementit can form a legally binding contract

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4) Mediation (cont)

What are the consequences of refusing to participate in ADR?

An unreasonable refusal to cooperate with ADRcan be penalised

Dunnett v Railtrack (2002)

Authority

McMillan Williams v Range (2004)

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4) Mediation (cont)

Identify different types of mediation

1) Family mediation

2) Commercial mediation services e.g. CEDR

3) Smaller disputes

4) Online dispute resolution (ODR)

e.g. West Kent Mediation Service

5) Mediation services for victims of medical negligence

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4) Mediation (cont)

What are the advantages of mediation?

1) Confidential

2) Less formal than the courts

3) Legal representation is not required

4) Cost-effective

5) The parties are in control

What are the disadvantages of mediation?1) The dispute may not be resolved

2) The mediator sometimes overstep the mark – research by Hazel Genn

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ADR part 2

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Conciliation

DefinitionIn conciliation, the neutral third party takes an interventionist role in the discussions between theparties in order to push them in the direction of a settlement

Compromise or else

ACAS

It is particularly appropriate for major commercial disputes

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Arbitration

Arbitration is a procedure where the parties to a dispute, voluntarily agree to submit their claims to an independent third party (an arbitrator), as a way of resolving a dispute, without the need for a court case.  Please settle

our dispute

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Arbitration (cont)

1) The law relating to arbitration is set out in the Arbitration Act 1996

2) S 58 Arbitration Act 1996 states that the decision by the independent third party is legally binding

3) The decision to arbitrate can be made:

a/ Before the dispute arises

b/ After the dispute has arisen

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Arbitration (cont)

The agreement to arbitrate in the event of a dispute arises

b/ Dry cleaners

a/ Travel agentsWhere’s the hotel then

a/ Before the dispute arises

This was my best frock, I’m going to arbitrate

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Arbitration (cont)

4) The arbitrator

S 15 of the Arbitration Act 1996 details how the arbitrator can be chosen

5) The arbitration hearing

● The exact procedure is left to the parties

● Paper hearing

● Paper & oral submission

● Flexibility as to date, time & place of the hearing

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Arbitration (cont)

6) The award

The decision made by the arbitrator is binding

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Arbitration (cont)

7) Evaluating arbitration

Advantages

a/ Flexibility

b/ Expertise

c/ Privacy

d/ Speed

e/ The award

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Arbitration (cont)

Disadvantagesa/ Legal funding is not available

b/ An unexpected legal point

c/ Cost

d/ Appeals

e/ Delays

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Tribunals

1) What is a tribunal?

A tribunal is a body that performs a function similar to that of a court of law, but it is not a court of law

2) When are tribunals used?

Where a tribunal exists it must be used, the parties cannot use the courts

3) How many tribunals are there?

Approx 75

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Tribunals (cont)

4) The types of tribunals

a/ Domestic

Deal with matters relating to the internal workings of particular organisations

I’ve found my mobile, nurse For example:

The BMA,

The Law Society &

The Bar Council

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Tribunals (cont)

b/ Administrative tribunals

Their main function is to resolve disputes between individuals and government departments concerningthe individual’s social & welfare rights

For example:

The Immigration Appeals Authority

Industrial Tribunal

Rent tribunals

Social Security Tribunals

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5) The composition of tribunals

Tribunals (cont)

a/ An independent (legally qualified) chairman

b/ Two lay members of the public with relevant expertise

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Tribunals (cont)

6) The procedure

a/ Legal representation is not encouraged

b/ Legal aid is generally not available

There are exceptions:

Land Tribunals

Employment tribunals

Mental Health Review Tribunals

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Tribunals (cont)

6) The procedure

c/ Inquisitorial process

d/ Not bound by previous decisions

7) How are tribunals controlled?

i. The Council of Tribunals

ii. The courts

Appeals

Judicial review

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Tribunals (cont)

8) Evaluation

Advantages

a/ Cheaper option than the courts

b/ Claims are processed more quickly

C/ Informal This is variable

d/ Expertise

e/ Capacity

f/ PrivacyException employment tribunals

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Tribunals (cont)

8) Evaluation (cont)

Disadvantages

a/ A lack of openness

b/ Lack of independence

Suspicions about fairness

c/ Legal aid

f/ Some tribunals do not have to give reasons for their decisions

d/ Not really accessible

e/ Lack of coherence

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Tribunals (cont)

8) Evaluation (cont)

Disadvantages (cont)

g/ Rarely follow precedent

h/ No right of appeal from some tribunals