Alternative dispute resolutions (ADR) can offer a cheaper and happier outcome than taking a case to court, as court can be time consuming, expensive and difficult. In 1995, the Lord Chief Justice said that legal representatives must make sure that their clients are aware of using ADR before taking a case to trial. The Civil Procedure Rules give judges the power to compel the parties to attempt to resolve all or some of the pre-trial issues using ADR before a case will be allowed to proceed. However, ADR is not mandatory as it is not always suitable or necessary to attempt to resolve a dispute in this way and forcing ADR could potentially breach the right to a fair trial. ADR is actively encouraged and successful ADR can prevent a relationship between two parties from turning sour as both can leave happy and continue to work with each other in the future. ADR can be win, win, trial tends to be win, lose. Below is an overview of the different forms of ADR.
This is the least formal, quickest and cheapest ADR. It is private and a solicitor can negotiate on your behalf, which can allow a neutral evaluation of the dispute.
A neutral facilitator will go between two parties to assist them in finding a compromise and their own resolution to their dispute. This tends to take place in a neutral venue and separate rooms. Most importantly the parties make the decisions. Mediation is a popular way of resolving property and custody issues in divorce cases. It is also a good way for companies to resolve their issues. The Centre for Effective Dispute Resolution (CEDR) mediation audit 2018, stated that £3 billion was saved in lost productivity, wasted time, damaged relationships and legal fees through the use of mediation in commercial claims during that year.
This is similar to mediation. A conciliator will assist the two parties in finding a resolution to their dispute. However, a conciliator can suggest solutions to the dispute, unlike in mediation. Although, the conciliator has no power to enforce the solutions that they have suggested.
Both parties voluntarily agree to submit their dispute to an impartial, third-party arbitrator and agree to be legally bound by the decision. Arbitration is the favoured method to resolve a commercial dispute. The Arbitration Act 1996 regulates the process and empowers the arbitrator. Its aim is to achieve the fair resolution of disputes by an impartial tribunal without unnecessary expense or delay. The parties should be free to agree how their disputes are resolved. The arbitrator tends to be somebody with experience and skill in the relevant field, which enables them to understand the issues in the dispute and they can sit in a panel of up to three. Arbitrators are professional and the Institute of Arbitrators regulates the standard of its members. However, arbitrators have fewer powers than the court when it comes to obtaining evidence from the parties and they may lack necessary legal knowledge. Arbitration can be cheaper and faster compared to court and can be held at a place and time convenient to both parties. It is private and will be more likely to ensure a friendly outcome for both parties than a court procedure. Arbitration tends to be final as rights to appeal the decision are very limited. Arbitration is now a common method of resolving consumer disputes using organisations such as the ombudsmen services.
The team here at Lawdit are happy to assist and advise you with any disputes that you may have.
Written by Samuel Killoran who is a Law Student at Solent University.