Jamie Louise Bartlam

The process where the parties in a dispute come to a compromise without going to court. Why do people use ADR instead of the civil courts? - Going to court is expensive and time consuming - ADR maintains relationships as it involves compromise and avoids argument - ADR is private Negotiation The Simplest form of ADR. The parties in a dispute can negotiate a solution themselves It is private, fast and cheap If the clients cannot reach a settlement themselves - Solicitors often negotiate on their clients behalf resulting in out of court settlements Not legally binding on the parties any money promised does not legally have to be paid Mediation Where a neutral person (mediator) helps the parties to reach a compromise The mediator acts as a facilitator taking offers between the parties but doesnt offer their own opinion Mediation works best when there is some chance that parties will cooperate Many companies save 1,000s in legal fees using Mediation services. There are a number of organisations that offer mediation services the main one is the Centre For Dispute Resolution 80% of disputes they deal with are settled without the need for court action Mediation is not legally binding and there is no guarantee that a settlement will be reached. This means that you still have to use the courts, so in effect failure at the mediation stage can result in extra delays and extra costs. Conciliation Similar to mediation neutral third party helps to resolve the dispute However the conciliator plays a more active role in the process They will suggest ways in which a compromise could be reached Advisory Conciliation and Arbitration Service (ACAS) is used by employers and Trade Unions to settle disputes before (and sometimes during) industrial action takes place. ACAS offers conciliation to both sides in unfair dismissals claims before the claim can be taken to an employment tribunal 60% of such claims are settled this way Conciliation is not legally binding on parties

Jamie Louise Bartlam Arbitration The most formal method of ADR The parties with a disagreement pass their dispute to a third party, who will make a judgment on their behalf. This decision made by the arbitrator is known as an award and is legally binding on the parties. The relevant law on arbitration can be found in the Arbitration Act 1996 The agreement to go to arbitration can be made by the parties at any time. It can be written into a business contract by what is called a Scott v Avery clause or the parties may agree on arbitration when a dispute arises.

1. Speed quicker than going to court saves time (parties and courts), no witnesses, no having to explain technicalities to the judge. 2. Expertise - A specialist from within a particular trade or industry is able to suggest a reasonable solution which will be acceptable to the parties involved. A judge is unlikely to have specialist knowledge, other then in the law. 3. Privacy ADR is private, no publicity which could ruin a business reputation the public are also not allowed to attend 4. Relationships maintained as ADR involves compromise and avoids argument 5. Cheaper no court fees or solicitors fees as parties choose their own representative/3rd Party. Every case resolved by ADR saves the government money too 6. Decisions finalised no appeals route 7. Flexible procedure parties choose their method of ADR which they want and whether it is formal or informal, the hearings time and places are also flexible.

1. Unequal Bargaining Power in certain situations one side is able to dominate the other e.g. employment and divorce cases. 2. Lack of Legal Expertise would not be able to make a decision upon an unexpected legal point which may arise as a mediator or arbitrator is unlikely to have the same legal expertise and knowledge as a judge. 3. Fees are still expensive for using the Centre of Dispute Resolution and ACAS 4. Time consuming & Costly when witnesses are used in formal hearings. 5. Rights of appeal are limited 6. Enforceability only the award in Arbitration is legally binding 7. Delays for commercial and international disputes can be as great as those in the courts 8. No Guarantee that ADR will work a court may still be required 9. No system of precedent you can not look up past cases, similar to the current one to see how they were resolved.