ADR Evaluation

Intro:
Court action is not always the most appropriate means of resolving a dispute, due to the following reasons:

• Complexity of legal procedures
• The cost of court action
• Intimidating atmosphere of the courts
• The delay in resolution
• The public nature of court action
• the adversarial nature of court action which will result in a deterioration of the relationship between the parties

ADR is encouraged by Part 1 Civil Procedure Rules 1998 - there is an "overriding objective" on judges to encourage ADR where appropriate

Arbitration:

• Commonly used in commercial and contract cases, and most notably high profile sports cases
• Definition - the parties agree to let an independent arbitrator make a binding decision. Many contracts include a Scott v Avery clause to agree pre-contractually to arbitrate in the event of a dispute
• Legal Authority - s1 Arbitration Act 1996, s5 Arbitration Act 1996, Institute of Arbitrators 

Advantages:

• The parties have discretion as to the choice of arbitrator with the existence of the Institute of Arbitrators
• The hearing procedure is left to the discretion of the parties; they can choose the venue, date, number of witnesses etc
• There is rarely any publicity
• The award is binding and can be enforced by the courts
• The arbitrator is an expert in the field

Disadvantages:

• Public funding is not available, so one party may have an advantage from the offset
• Appeals are restricted in the arbitration process
• Parties may feel that they do not get their 'day in court'
• If a legal point arises, there is not always a legal professional in the hearing

Mediation:

• Commonly used in family disputes or any area where a relationship needs to be maintained
• Definition - The parties are encouraged to come to their own settlement with the help of a third party neutral mediator who acts as a 'referee'
• Legal Authority - Dunnett v Railtrack, Halsey v Milton Keynes NHS Trust, s13 Family Law Act 1996, MIAMS (introduced in 2011)

Advantages:

• It is a private and confidential process
• The parties enter into mediation voluntarily
• It is quick, cost-effective and accessible
• There is a good chance that the parties can maintain a relationship

Disadvantages:

• The dispute may end up going to court anyway if mediation fails, resulting in greater costs
• Increasingly being seen as a compulsory step in the process
• Where parties are 'forced' into mediation, there is a half-hearted commitment , decreasing the chances of success

Conciliation:

• Commonly used in industrial disputes
• Definition - The third party plays an active role in the proceedings in order to push the parties in the direction of a settlement
• Legal Authority - ACAS

Advantages:

• Cheaper than litigation
• A private and confidential process
• ACAS adopts a prevention rather than cure approach to dispute resolution
• It identifies and clarifies the main issues in the dispute

Disadvantages:

• Heavily relies on the skills of the conciliator
• The dispute may end up going to court anyway if conciliation fails, resulting in greater costs

Negotiation:

• Used in most cases at the beginning of the dispute
• Definition - resolving the dispute between the parties themselves; can involve solicitors. At its most basic, involves returning faulty goods to a shop; its most complex involves solicitors and settlement offers being exchanged

Advantages:

• Completely private
• Quick resolution, maintaining relationships
• Relatively informal method of resolution

Disadvantages:

• Involving solicitors can make the process costly
• Offers are often exchanged and are not agreed until the day of court; wasting time and money
• People see it as a "halfway" house and think that they are not receiving as much as if they had gone to court

Tribunals:

• Used in specialist areas of law; e.g Social Security, Immigration, Employment etc
• Definition - "specialist courts" dealing with different areas of the law. They are inferior to the courts
• Legal Authority - Peach Grey Co v Sommer, Leggatt Report 2001, Franks Committee 1957

Advantages:

• Cheaper and quicker than the courts; many cases dealt with in a day with no legal representation
• Procedure is simple, much more informal than a court and most cases are private
• Experts are involved in decision making; more flexible because they are not bound by precedent
• Avoids congestion of ordinary civil courts

Disadvantages:

• Public funding is not available
• Tribunals do not give reasons for their decision, which makes it difficult to appeal
• Lack of adherence to precedent makes it difficult to predict the outcome of cases
• Lack of publicity means that issues of general public importance could be missed