alternative dispute resolution and tribunals

Alternative dispute resolution
Problems with court hearings

 Adversarial procedure
 Technical cases
 Inflexible
 Imposed solutions
 Publicity

ADR used most commonly in:

 Family
 Consumer
 Construction
 Employment
 Commercial

Alternative dispute resolution mechanisms

 Arbitration

Both parties agree to let a third party arbitrator to decide. Legally binding.

 Mediation

Mediator appointed to help parties reach an agreement that both consider agreeable. Written down
and legally binding.

 Conciliation

Like mediation but conciliator= more active role. Suggests solutions (encourages concessions) for
settlement of dispute.

Arbitration

Governed by Arbitration Act 1996.

1(a) “the object of arbitration is to obtain the fair resolution of disputes by an impartial tribunal
without unnecessary delay or expense”.

Will typically be an expert in the particular field of commerce to which the contract relates.
Appointed because of their specialists knowledge.

Mediation

Increase in recent years following Dunnett. Mediation firmly established in:

 Divorce and subsequent disputes
 Negligence and judicial review action
 Trust and probate disputes
 Property disputes
 Landlord and tenant disputes
 Commercial disputes
 Defamation, employment and housing disputes

, Cowl v Plymouth City Council 2002- Lord Woolf “even in disputes between public authorities and
the members of the public for whom they are responsible, insufficient attention is paid to the
paramount importance of avoiding litigation whenever this is possible…both sides must now be
acutely aware of the contribution (ADR) can make to resolving disputes in a manner which both
meets the needs of the parties and the public and saves expense and stress”.

What power does the judge have re ADR?

 Via case management strategy: to stay (pause) a case for up to 28days
 To give parties a chance to use ADR (where appropriate)
 More on this later, but those parties unwilling to engage with ADR may face an adverse
ruling on the recovery of costs

Is ADR promoted?

 MoJ sponsors online directory of accredited mediators
 Mediation provided on civil law matters for a fixed fee (depending on how much £ in
dispute)
 Small claims mediation service: telephone based. Government wants all those on small
claims track to be referred here.

Guidance from small claims court

Before applying to the court

 You must try and settle a claim before taking court action. If you do not try to settle first, the
court may penalise you. So, for example, if a television does not work, there is no point in
applying to the court immediately for compensation - you must contact the shop which sold
it first to try to solve the problem, and only use the court if you cannot get the problem
solved by negotiation. The court will expect you to make your claim in writing, giving the
other person a reasonable time to reply – a month is usual. You should also warn them that
you will take court action if they fail to reply within the given time.
 You may be able to sort out your claim by using mediation if the other party agrees. This is
where an impartial third party, called a mediator, helps both parties to reach a mutually-
agreeable solution to a problem. Sometimes even if you start a claim, the court might refer
your case to a mediator.
 You can find a local mediation provider by using the tool on the Ministry of Justice website
at www.justice.gov.uk. You will be charged a fixed fee.
 You can find further information about mediation on the Civil Mediation Council website at
www.civilmediation.org
 The court also offers free telephone-based mediation through its Small Claims Mediation
Service. This is available to all small claims which are defended, and if both parties agree to
it.

Examples of ADR in action

Formal schemes of ADR include:

 Advisory, conciliation and arbitration service (ACAS)
 Association of British travel agents (ABTA)