DR – WS1 Pre Action Steps TIFF LIAO
Chapter 4 Alternative Dispute Resolution Page 59
4.1 THE NATURE OF ADR
4.1.1 HOW ADR DIFFERS FROM OTHER FORMS OF DISPUTE RESOLUTION
THE INDEPENDENT More likely to trust and be open with the third party - As the parties KNOW that the third party is
THIRD PARTY independent and CANNOT do anything to harm them, they are
They are LESS LIKELY to be aggressive towards each other, and they will NOT want to be seen as an
obstacle towards a settlement and are likely to be MORE accommodating, in the presence of the third
party.
The third party may therefore be able to defuse the dispute and make settlement more likely.
Will be trained to act as a neutral + have necessary industry knowledge required to understand the
dispute.
A commercially- minded neutral may come up with ideas that the parties might not have thought of,
and which solve the problem without either side losing face.
WHAT AFFECTS Clients attitude to publicity
CHOICE? Difficult points in law that need resolving
Need to set a legal precedent
Type and amount of evidence involved
Remedy required
Time and cost
Possible effect on the parties relationships
4.2 ADVATANGES OF ADR
- The CPR 1998 specifically recognise the advantages of ADR. Rule 1.4(2)(e) provides that the court may further the overriding
objective of dealing with cases justly by:
encouraging the parties to use an alternative dispute resolution procedure if the court considers that appropriate and
facilitating the use of such procedure.
- The Practice Direction on Pre-action Conduct and Protocols emphasises the importance of settlement and ADR in paras 8–11.
- Arbitration and ADR procedures are confidential.
Nothing said can be referred to in any later court proceedings UNLESS all parties agree to waive confidentiality.
HOWEVER,, court proceedings are usually conducted in open court.
The media can attend and are able to report on most proceedings.
As a GENERAL RULE, ANYONE CAN obtain a copy of a statement of case, order or judgment that is on a court file
(see CPR 1998, r 5.4C(1)).
4.6 USING ADR
- Anyone can provide help in resolving disputes, but the job is not as easy as it sounds. It should be done by someone who has
been trained.
(1) The Centre for Effective Dispute Resolution (CEDR) = an independent, non-profit-making organisation promoting ADR, which
runs training courses and maintains a panel of neutrals.
(2) The ADR Group = a private company that undertakes mediation and training, and which has established a network of mediators
in firms of solicitors throughout the country.
(3) Chartered Institute of Arbitrators
1
TIFF LIAO
Chapter 4 Alternative Dispute Resolution Page 59
4.1 THE NATURE OF ADR
4.1.1 HOW ADR DIFFERS FROM OTHER FORMS OF DISPUTE RESOLUTION
THE INDEPENDENT More likely to trust and be open with the third party - As the parties KNOW that the third party is
THIRD PARTY independent and CANNOT do anything to harm them, they are
They are LESS LIKELY to be aggressive towards each other, and they will NOT want to be seen as an
obstacle towards a settlement and are likely to be MORE accommodating, in the presence of the third
party.
The third party may therefore be able to defuse the dispute and make settlement more likely.
Will be trained to act as a neutral + have necessary industry knowledge required to understand the
dispute.
A commercially- minded neutral may come up with ideas that the parties might not have thought of,
and which solve the problem without either side losing face.
WHAT AFFECTS Clients attitude to publicity
CHOICE? Difficult points in law that need resolving
Need to set a legal precedent
Type and amount of evidence involved
Remedy required
Time and cost
Possible effect on the parties relationships
4.2 ADVATANGES OF ADR
- The CPR 1998 specifically recognise the advantages of ADR. Rule 1.4(2)(e) provides that the court may further the overriding
objective of dealing with cases justly by:
encouraging the parties to use an alternative dispute resolution procedure if the court considers that appropriate and
facilitating the use of such procedure.
- The Practice Direction on Pre-action Conduct and Protocols emphasises the importance of settlement and ADR in paras 8–11.
- Arbitration and ADR procedures are confidential.
Nothing said can be referred to in any later court proceedings UNLESS all parties agree to waive confidentiality.
HOWEVER,, court proceedings are usually conducted in open court.
The media can attend and are able to report on most proceedings.
As a GENERAL RULE, ANYONE CAN obtain a copy of a statement of case, order or judgment that is on a court file
(see CPR 1998, r 5.4C(1)).
4.6 USING ADR
- Anyone can provide help in resolving disputes, but the job is not as easy as it sounds. It should be done by someone who has
been trained.
(1) The Centre for Effective Dispute Resolution (CEDR) = an independent, non-profit-making organisation promoting ADR, which
runs training courses and maintains a panel of neutrals.
(2) The ADR Group = a private company that undertakes mediation and training, and which has established a network of mediators
in firms of solicitors throughout the country.
(3) Chartered Institute of Arbitrators
1
TIFF LIAO
