Alternative Dispute Resolution

Sometimes going to court is not always the most appropriate means of resolving a dispute because: - Complexity of legal procedures - Delay - Cost - Intimidating atmosphere of the court - The adversarial nature of court action which will result in a deterioration of the relationship between the parties Civil Procedure ules !"## states that it is a $udge%s role in active case management to encourage &D where appropriate' (egotiation - )argest form of &D - Involves two parties discussing their problems in order to find a suitable solution - Probably the cheapest and least formal method* avoiding stress and hassle' - It can involve solicitors acting on behalf of their clients* but no third party is involved' &dvantages Completely private* +uic, resolution* relationships can be maintained* relatively informal Disadvantages Involving solicitors can ma,e the process costly* offers are often exchanged but not agreed until the day of the court which wastes time and money* people see it as a -halfway house% and thin, that they are not receiving as much as they would have done if they went to court .ediation - Involves a third party* a mediator who is li,e the -referee% and passes information between the two parties' - /amily )aw &ct !""0 encourages divorcing couples to use mediation services before going to court to settle matters' - Can only wor, if there is some hope of cooperation between the two parties' - ecent government proposals means that from &pril 12!!* all divorcing couples will have to attend mediation services before settling in court and this could potentially lead to an infringement of the 3uman ights &ct !""#' &dvantages Private and confidential* parties enter voluntarily* +uic, cost effective and accessible* good chance that parties can maintain a good relationship Disadvantages Dispute may end up going to court anyway if mediator fails and this results in greater costs* where parties are forced into mediation

there is half hearted commitment decreasing the chances of success

Conciliation - Similar to mediation but third party ta,es a more active role by suggest grounds for compromise or a basis for settlement' - &gain* re+uires a degree of cooperation and stress and cost of court can be avoided if successful' - 4ften used in industrial disputes* example of an organisation that provides such services is &C&S* which also aims to prevent industrial disputes' &dvantages Cheaper option than litigation* private and confidential* &C&S adopts a prevention rather than a cure approach* identifies and clarifies the main issues in the dispute Disadvantages elies heavily on the s,ills of the conciliator* dispute may end up going to court anyway if conciliator fails and this results in greater costs &rbitration - .ore formal form of &D * involves a third party* the arbitrator who ma,es a decision* both parties are then bound to whatever decision they ma,e' Decision can be enforced by courts if necessary' - &rbitration &ct !""0 states that the procedure must be very flexible for both parties involved* also allows parties to decide how many arbitrators they want* one or a panel of two or three' They can choose a lawyer or an expert in the field to be an arbitrator' - The Institute of &rbitrators offers training to arbitrators involved in dispute' - Scott v &very clauses often used in contracts which mean that any dispute that arises within the contract must be settled via arbitration' - Due to decision being binding* there is little room for appeal' &dvantages Parties have discretion over the choice of arbitrator* hearing procedure is left to their discretion so they can decide the date and venue* rarely any publicity* decision is binding and can be enforced by the courts* arbitrator is an expert in the field Disadvantages Public funding is not available so one party may have an advantage from the outset* appeals are restricted* if a legal point arises then there is not always a legal professional in the hearing