ALTERNATIVE METHODS FOR DISPUTE
RESOLUTION
Using the courts to resolve disputes can be costly, in terms of both money and time.
It can also be traumatic for the individuals involved and may not lead to the most
satisfactory outcome for the case. An additional problem is that court proceedings
are usually open to the public and the press, so there is nothing to stop the details of
the case being published in local or national newspapers. It is not surprising,
therefore, that more and more people and businesses are seeking other methods of
resolving their disputes. Alternative methods are referred to as ‘ADR’, which stands
for ‘Alternative Dispute Resolution’, and include any method of resolving a dispute
without resorting to using the courts.
ENCOURAGING ADR
In the 1990s there were many moves to encourage
the use of ADR: for example, the Woolf Report
included more use of ADR as one of its
recommendations. As a result the 1999 Civil
Procedure Rules allow judges to ‘stay’ court
proceedings, that is stop the proceedings
temporarily, so that the parties can try mediation or
other ADR methods.
EMPLOYMENT CASES
ACAS (Advisory Conciliation and Arbitration
Service)
ACAS has specially trained conciliation officers
who have a great deal of experience of
employment disputes.
Success of this service can be seen from the
fact that over half of all claims fi led are settled
in this way
FUNDING OF CASES
Under the legal aid rules, funding is not
available for a court case if it could be
dealt with by an alternative method of
resolution
NEGOTIATION
• Negotiating directly with the other party
• Advantage of being completely private, and is
also the quickest and cheapest method of
settling a dispute
• Solicitors can be hired but the cost will rise
• One big worrying aspect is that cases are
dragged for a long time
MEDIATION
• Neutral mediator helps the parties to reach a compromise
solution
• Role of the mediator is to find a common ground
• Mediator will not tell his views and try to act more as a
“Facilitator”. However he/she can be consulted for merits of
the case.
• Mediation is only suitable when there is some hope to solve
the issue
• Mediation can take any form parties like and they are in
control of proceedings.
FORMALIZED SETTLEMENT CONFERENCE
(SUB TYPE OF MEDIATION)
 Formal method of mediation
 Parties present a case to panel (composed of a decision
making executive from each party, and a neutral party)
 Decision is not strictly legal one hence can be challenged
 Since less formal it gives the companies chance to
continue business
 Court is more public and strict so it is said that with
mediation everyone wins.
MEDIATION SERVICES
 Growing number of commercial mediation services
 Disadvantage of mediation is that cases might not be
solved (although 80% of cases are solved)
 Matter will go to courts if unresolved
 Mediation is available for big and small both civil matters
CONCILIATION
 Quite similar to mediation
 Main difference is that conciliator will play a more active
role
 Conciliator will provide grounds for compromise and the
possible basis for settlement
ADVANTAGES OF ADR
 faster
 cheaper
 more flexible
 less stressful
 possible to agree resolutions that are not available in
court
(in courts only compensation is damages or equitable
remedies but in ADR variety of compensations can be
given)
ARBITRATION
Two ways
Courts use a more informal
process to hear proceedings
Parties agree to submit their
claim for private arbitration
AGREEMENT TO ARBITRATE
• arbitration is the voluntary submission by the parties, of
their dispute, to the judgment of some person other
than a judge. Such an agreement will usually be in
writing, and indeed the Arbitration Act 1996 applies only
to written arbitration agreements.
• An agreement to go to arbitration can also be made
after the dispute arises. Arbitration is becoming
increasingly popular in commercial cases.
• Arbitration Act 1996 states that the parties are free to
agree on the number of arbitrators, so that a panel of
two or three may be used or there may be a sole
arbitrator.
THE ARBITRATION HEARING
• Procedure is left to the parties as they desire
• Paper arbitration where parties write down their points
on piece of paper
• Parties can submit documents to arbitrator for
submission
• If there is a witness he has to take oath
• The decision made by the arbitrator is called “AWARD”
ADVANTAGES OF ARBITRATION
• Parties may choose their own arbitrator
• Expert can be called for quality of evidences
• Hearing time and place can be arranged to suit parties
• Procedure can be flexible
• Matter is dealt in private so no publicity
• More quick than a court hearing
• Cheap than court
• Award is normally final
DISADVANTAGES OF ARBITRATION
• An unexpected legal point may aware which need
consultation of lawyers
• If professional arbitrator is used his fees maybe
expensive
• It will be expensive if parties opt for formal hearing with
all the witnesses and lawyers
• Rights of appeal are limited
• Delays of commercial and professional arbitration can
be as great as a court