What is ADR?
ADR, is any method of resolving a dispute without resorting to using the courts.
Types of ADR: Negotiation
- Negotitiation is directly negotiating.
- It is completley private -> as well as being the quickest, and cheapest method.
- If parties cannot reach an agreement, then solicitors can get involved = Costly
- They will try negotiate a settlement.
- If court procedings start, lawyers will continue to negotiate on parties behalf.
- Lawyer= £
- Cases can last years if they reach court : /
Types of ADR: Mediation
- Uses a mediator, who helps the parties compromise to a solution
- Mediator, will consult each party, and try, to reach some common ground.
- Mediator keeps confidentitality
- He won't tell paties their views, but can be asked for opinions on merits
- Mediation is only suitable if there is hope parties will co-opertate
- Parties have complete control with mediation
A more formalised method of Mediation, is a formalised settlement conference, which is like a mini trial heard by a panel .
Types of ADR: Conciliation
- It is simular to Mediation, as there is also a neutral third party, called a conciliator.
- Concilator plays a more active role.
- They are expected to suggest grounds for compromise.
- It does not always lead to resolution, and may continue in court.
Types of ADR: Arbitration
There are two different processes of Arbitration
1. Is an informal hearing, in the commercial court, in the Queens bench division.
2. The other is where parties, submit claims to a private arbitrator ( this type of arbitration is RELEVANT to ADR)
- Private Abitration is governed by the Arbitration act 1996, section one of the act sets out the principles.
- Arbitration is voluntary submission by parties, of their dispute, to the judgement of a person other than a judge.
- An agreement is written in writing -> The arbitration act only applies to written agreements
- Precise way Arbitration is carried out, is left to parties agreement.
- Many commericial companies, have a Scott v Avery clause, which states in case of a dispute arising they will use, Arbitration.
Advantages & Disadvantages of Arbitration
- Parties can chose their own arbitrator.
- Hearing time & Place is up to parties.
- Actual procedure is flexible, and less informal then court.
- Private and there is no publicity.
- It is quicker than court hearing.
- Unexpected points of law, may arise, which are not suitable for the decision of a non-lawyer arbitrator.
- If a professional arbitrator is used, then the fees can be expensive.
- The rights to appeal are limited.
Types of ADR: Tribunals
Tribunals operate alongside with the court system, parties is tribunals cannot go to the court to resolve dispute, as a tribunal is instead of a court proceding. Tribunals enforce rights, which have been granted through social, and welfare legislation.
The main types of Tribunals are:
- Social security.
- Immigration. ( Hear appeals of the right of immigrant, to stay in the country.)
- Mental health review.
Advantages & Disadvantages of Tribunals
- Cost effective.
- Speedy hearings.
- Simple procedure.
- Lack of funding.
- Impartiality of the chairman of the tribunal.
- Other problems, like very few tribunals give reasons for their decisions.
Comparing Courts & ADR
- ADR is cheaper, as it is unlikely to need a lawyer.
- The most expensive type of ADR is Arbitration.
- All types of ADR are quicker then going to court.
- Parties are in complete control of ADR.
- Parties can come to some sort of agreement.