Civil Courts: Civil Process: Alternate Dispute Resolution

Alternative Dispute Resolution (ADR) is the means of resolving a dispute without going through court.

• ADR is encouraged by the Civil Procedure Rules. Part 1 contains an overriding objective that judges have to deal with cases justly and fairly
• There are four main types of ADR: negotiation, mediation, conciliation and arbitration

Negotiation:

• Involves solving the dispute with the parties directly
• Could involve solicitors that result in a settlement before the court date
• "Modern" methods of negotiation - DIY, on-line
• Biggest method of ADR - completely private, easy, minimum cost

Mediation:

• Involves having a third party acting as a 'referee'
• Particularly popular in family cases - Family Law Act 1996
• "Modern" methods - online mediation, mediation centres
• The mediator cannot suggest ways to compromise, the parties must be encouraged to reach their own decision
• It is becoming seen as compulsory- Dunnet v Railtrack - where an adverse costs order was given to parties who refused to mediate
• 2011 - Introduction of Mediation Information Meetings (MIAMs) -compulsory initial meetings for all divorcing couples. The meeting costs around £140 and will assess whether the case is suitable for resolution through mediation or whether court would be more appropriate
• There are mediation services away from the conventional solicitor's office - DMS (dispute mediation services), CEDR, The Mediation Room, West Kent Mediation

Conciliation:

• Involves a third party taking a more active role (they are allowed to suggest compromises)
• Common in industrial disputes - ACAS is the biggest conciliatory body
• Is a prevention rather than cure approach
• Used in access to services for the disabled
• Can be used to avoid industrial strikes

Arbitration:

• Governed by the Arbitration Act 1996
• Common in commercial contracts and sporting disputes
• The result is binding on the parties
• A flexible procedure (e.g number of witnesses, where, when etc)
• One can choose a specialist in the field or a legal professional as the arbitrator
• Must be carried out in a judicial manner in line with natural justice
• Scott v Avery clause - agreement to arbitrate before contract