2. 1) Why do we need ADR?
There are a number of problems in using the courts,
i.e. litigation is:
1) Expensive and slow
2) Many disputes are of a highly technical nature
3) Intimidating
4) Adversarial
5) Solutions are imposed
6) It usually leads to a loss of good relations between the
parties
7) Public
8) There is insufficient capacity 2
3. 2) ADR
What are five main types of ADR?
1) Negotiation
2) Mediation
3) Conciliation
4) Arbitration
5) Tribunals
3
4. 3) Negotiation
What is negotiation?
Negotiation is defined as an informal
method of bargaining by the parties to
settle a dispute
We’re just
negotiating
It involves the parties communicating with each
other, sometimes with solicitors
4
5. 3) Negotiation (cont)
What are the advantages of negotiation?
Quick
Cheap
Private
What are the disadvantages of negotiation?
Costs increase if solicitors become involved
No guarantee it will be successful 5
6. 4) Mediation
What is mediation?
Mediation is defined as a process by which a
neutral third party tries to get those involved
in a dispute to reach a compromise solution
However, the parties are in control
The mediator is merely a neutral facilitator, or
a go-between, i.e. helping the parties to reach
a compromise
Ok you
guys, I’ve
facilitated
shake on it
6
7. 4) Mediation (cont)
What is the procedure for mediation?
a/ There is an initial meeting
b/ Followed by private meetings, when the
mediator will explore the position with each
party in turn carrying offers to and fro
c/ Finally a second meeting helps the parties
negotiate face to face.
If the mediation results in a written agreement
it can form a legally binding contract
7
8. 4) Mediation (cont)
What are the consequences of refusing to
participate in ADR?
An unreasonable refusal to cooperate with ADR
can be penalised
Authority
Dunnett v Railtrack (2002)
McMillan Williams v Range (2004)
8
9. 4) Mediation (cont)
Identify different types of mediation
1) Family mediation
2) Commercial mediation services e.g. CEDR
3) Smaller disputes
e.g. West Kent Mediation Service
4) Online dispute resolution (ODR)
5) Mediation services for victims of
medical negligence
9
10. 4) Mediation (cont)
What are the advantages of mediation?
1) Confidential
2) Less formal than the courts
3) Legal representation is not required
4) Cost-effective
5) The parties are in control
What are the disadvantages of mediation?
1) The dispute may not be resolved
2) The mediator sometimes overstep the mark –
research by Hazel Genn 10
12. Conciliation
Definition
In conciliation, the neutral third party takes an
interventionist role in the discussions between the
parties in order to push them in the direction of
a settlement
Compromise
or else
ACAS
It is particularly appropriate for major commercial
disputes 12
13. Arbitration
Arbitration is a procedure where the parties to a
dispute, voluntarily agree to submit their claims
to an independent third party (an arbitrator), as a
way of resolving a dispute, without the need for
a court case.
Please settle
our dispute
13
14. Arbitration (cont)
1) The law relating to arbitration is set out in the
Arbitration Act 1996
2) S 58 Arbitration Act 1996 states that the decision
by the independent third party is legally binding
3) The decision to arbitrate can be made:
a/ Before the dispute arises
b/ After the dispute has arisen
14
15. Arbitration (cont)
a/ Before the dispute arises
The agreement to arbitrate in the event of a dispute
arises
Where’s
the hotel a/ Travel agents
then
This was my
best frock, I’m
going to
arbitrate
b/ Dry cleaners
15
16. Arbitration (cont)
4) The arbitrator
S 15 of the Arbitration Act 1996 details how the
arbitrator can be chosen
5) The arbitration hearing
● The exact procedure is left to the parties
● Paper hearing
● Paper & oral submission
● Flexibility as to date, time & place of the hearing
16
20. Tribunals
1) What is a tribunal?
A tribunal is a body that performs a function similar
to that of a court of law, but it is not a court of law
2) When are tribunals used?
Where a tribunal exists it must be used, the parties
cannot use the courts
3) How many tribunals are there?
Approx 75 20
21. Tribunals (cont)
4) The types of tribunals
a/ Domestic
Deal with matters relating to the internal
workings of particular organisations
I’ve found my
mobile, nurse For example:
The BMA,
The Law Society &
The Bar Council
21
22. Tribunals (cont)
b/ Administrative tribunals
Their main function is to resolve disputes between
individuals and government departments concerning
the individual’s social & welfare rights
For example:
The Immigration Appeals Authority
Industrial Tribunal
Rent tribunals
Social Security Tribunals 22
23. Tribunals (cont)
5) The composition of tribunals
a/ An independent (legally qualified) chairman
b/ Two lay members of the public with relevant
expertise
23
24. Tribunals (cont)
6) The procedure
a/ Legal representation is not encouraged
b/ Legal aid is generally not available
There are exceptions:
Mental Health Review Tribunals
Land Tribunals
Employment tribunals
24
25. Tribunals (cont)
6) The procedure
c/ Inquisitorial process
d/ Not bound by previous decisions
7) How are tribunals controlled?
i. The Council of Tribunals
ii. The courts
Appeals
Judicial review 25
26. Tribunals (cont)
8) Evaluation
Advantages
a/ Cheaper option than the courts
b/ Claims are processed more quickly
C/ Informal This is variable
d/ Expertise
e/ Capacity
f/ Privacy Exception employment tribunals
26
27. Tribunals (cont)
8) Evaluation (cont)
Disadvantages
a/ A lack of openness Suspicions about fairness
b/ Lack of independence
c/ Legal aid
d/ Not really accessible
e/ Lack of coherence
f/ Some tribunals do not have to give reasons for
their decisions
27
28. Tribunals (cont)
8) Evaluation (cont)
Disadvantages (cont)
g/ Rarely follow precedent
h/ No right of appeal from some tribunals
28
