Alternative Dispute Resolution

Produced by Dr Jepson and Mrs Lindley

•Ensure all mobiles are switched off •Feel free to ask questions – just raise your hand first •Have your précis notes (Ch.10 of The ELS) to hand so they can be checked Updated May 2013

Alternatives to the Courts

Why do we need alternative ways of resolving disputes?

Draw a table showing the strengths and weaknesses of the civil court process.

Encouraging ADR…

• Woolf report recommended more use of ADR.

• Judges now have a duty to encourage ADR.

• 1999 Civil Procedure Rules allow judges to “ stay ” court proceedings so ADR can be tried first.

ADR Methods

• Negotiation • Mediation • Conciliation • Arbitration • Also, some consider domestic tribunals to be a form of ADR.

Negotiation

• Dispute resolution at its simplest • Generally quicker and cheaper than other methods.

• How may the doctrine of Judicial Precedent help parties reach a settlement?

Mediation

• Neutral mediator helps parties reach a compromise solution.

• Aim is to encourage the parties to find common ground.

• Mediator does not suggest solutions.

Mediation Questions…

1. Give examples of the types of cases where mediation is often used.

2. What is a “ formalised settlement conference ” ?

3. What is the typical cost of a mediator? How does this compare to the cost of going to court?

Conciliation

• Neutral third party plays an active role in suggesting a solution.

• Process is now generally regarded as another form of mediation.

• Often used in unfair dismissal cases.

Arbitration

• Both sides agree to let a third party decide a solution.

• Arbitrator may be a lawyer or, alternatively, an expert in the field of the dispute.

• Either way, the decision is legally binding.

Arbitration Act 1996

• Private arbitration is now governed by the Arbitration Act 1996.

• Write out s.1 Arbitration Act 1996 your own words.

in • What does it say?

Scott v Avery Clause

• Included in many commercial contracts (see example on p.126).

• Court will refuse to deal with the dispute.

• Why do you think many companies include these clauses in their contracts?

Pros and Cons…

In pairs, produce a list showing the advantages and disadvantages of the different methods of ADR.

ADR in Practice

• It is important to be able to give

examples of when / where / how ADR is used in practice.

• Produce a chart with column 1 listing the different types of ADR and column 2 giving examples of when they are used in practice.

Tribunals …

2 kinds – Domestic tribunals Administrative tribunals • Domestic tribunals may be considered a form of ADR; administrative tribunals are slightly different.

Domestic Tribunals …

• “ In-house ” tribunals set up by private bodies, usually for their own internal disciplinary control.

• Examples: Law Society, General Medical Council, FA

Administrative Tribunals

• Operate alongside the court system.

• Created to give people a method of enforcing their entitlement to certain social rights, e.g. employment rights.

• Must be used instead of court proceedings.

Administrative Tribunals

• Legally qualified chairperson, with two lay members who have specialist knowledge of topic.

• Use of lawyers is allowed but generally no legal funding is available.

• Deal with over a million cases each year.

Ombudsmen

• Individuals appointed by the Government to deal with disputes outstanding in certain areas.

• Examples: Prison Ombudsman, Legal Services Ombudsman.

Ombudsmen

• Role is to investigate the way in which a complaint was originally dealt with.

• Referrals may only be made through an MP, local councillor or MEP.

• Have little real power but reports are taken very seriously.

Exam Question…

• Plan, then write, answers to the exam questions on page 131 of ‘

The

ELS ’ .

• Also, plan the below question: ‘

Discuss the argument that using alternative methods of dispute resolution is better than using the courts.

’ (OCR, 2003)