Alternative Dispute Resolution Alternative Dispute Resolution - ADR- ADR

Unit 1 – Task 3Unit 1 – Task 3

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Aims and Objectives• To develop understanding of the

Alternative ways of resolving a civil dispute

• To identify all key features of each system

• To compare each system against the traditional court system

• To evaluate the systems and to identify

• To get an A on the exam for this question!!!

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Starter activity….• Imagine that you have booked a holiday with Ravey Davey Quavey

holidays to Ibiza for the party season. Your holiday has cost £1100 and you have no other savings available. When you arrive at the Party Isle you discover that;

• The hotel is full of blue rinses and all the major clubs closed last week.

• You discover a set of false teeth in your bed (which is dirty),

• You get food poisoning as the kitchen is so dirty, and you get an ear

infection from the pool as there is OAP urine in it.

• The rep is not able to help you and simply tells you to “Sue them” when

you return. This is exactly what you decide to do!

• What factors will be important to you in deciding whether or not to sue Ravey Davey Quavey Holidays?

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ADR has grown in popularity because traditional litigation has many problems including:

• Cost• Time/Speed• Adversarial System• Intimidating• Disputes are highly technical• Solutions are imposed• Leads to loss of good relations between

parties• Disputes are public• Insufficient court capacity

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Why did ADR become so popular?

• Changes to public funding of civil cases

• Lord Woolf recommended in the Woolf Report that ADR should be used by parties to a case before accessing the traditional court system.

• The Civil Procedure Rules grants judges in the traditional courts the power to “stay proceedings” in order to allow the parties to attempt to resolve their disputes through ADR

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The main methods of ADR are:

• Negotiation• Mediation• Conciliation• Arbitration• Tribunals

Can you find an easy way to remember these?

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1. NegotiationThis is the most informal method of ADR and can be used in isolation or alongside any other methods, or indeed alongside traditional litigation.

It has the advantage of being completely flexible as it can be conducted either by the parties or by their representatives, however, there are some problems with this method.

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Watch the video clip and consider what the video can tell us about

power balance?

YouTube - Battle at Kruger

• What is a disadvantage of negotiation?• What will successful negotiation depend

on?• Is this a good thing?

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D&C Builders v Rees [1965]

• D&C did nearly £500 of work but Mrs Rees knew they were in financial trouble and forced them to accept £300. D&C agreed but them sued.

• Court said Mrs Rees had been unlawful in taking advantage of D&C (she had come to court with dirty hands ) and so allowed D&C to claim all money

• Mrs Rees had a strong (but unfair) negotiating position

 ● Most common of all, and preferred by all sensible people.

• Can continue even after legal action has begun. ● Usually involves several steps, each side giving a little until agreement is reached = Compromise! ● Outcome depends on negotiating skills and economic power not necessarily on justice.

D & C Builders v Rees [1965] 3 All ER 837, CA   ● May not succeed: other methods have then to be tried.

Key facts on Negotiation

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What are the advantages and disadvantages of Negotiation?

Advantages =

• Completely private• Quickest and cheapest

method of settling a dispute• Can be used in conjunction

with other methods at any point

• If parties can’t come to an agreement they may get solicitors to try and negotiate a settlement. In fact they will continue to negotiate even when the case starts.

Disadvantages =

• Once lawyers are involved there is a cost element

• Some cases go on for years only to end in an agreed settlement at the door of court.

Aims and objectives

• Research and summarise key cases that illustrate mediation

• Summarise and evaluate Conciliation

• Summarise and evaluate Arbitration

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Mediation…building bridges?• This is where a neutral mediator

helps the parties reach a compromise. They act as a facilitator to help the parties and does not normally offer their own opinion. Acts more as a go-between!

• Only suitable if parties co-operate.• Companies usually benefit as they

are skilled at negotiating.

• Mediation can take any form and the parties are in control.

• Not legally binding

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Exercise

• Using the various resources available to you research the two cases on your handout and summarise your findings.

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Dunnett v Railtrack• A litigant who

unreasonably rejects alternative means of resolving a dispute may have to pay the penalty.

• What does this tell you about the courts attitude to ADR?

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Halsey v Milton Keynes General NHST

• The burden is on the losing party to show the winners refusal of ADR was unreasonable.

• Again, what does this tell you about the way the traditional courts feel about ADR?

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Conciliation

• This is similar to mediation. • However, the conciliator takes a

more active role than the mediator, giving the parties their own opinion and indicating how a court would be likely to decide.

• In industrial disputes ACAS can give an impartial opinion of the legal decision and can assist in negotiations if required to.

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Advantages DisadvantagesConfidential, parties can decide the method they want

Only suitable if parties co-operate

Parties are in control – they make the decisions so they feel empowered

May still end up going to court and therefore = extra cost and extra aggravation. May have been better to use the court system in the first place???

Based on a compromise and therefore may promote harmonious relationships between the parties after the disagreement has been resolved.

Not usually legallyenforceable unless subject to an additional court order

May include agreements about the conduct of future business between 1 of the parties

Usually a skilled mediator is required otherwise it may become a bullying exercise especially if one party is more powerful than another

Avoids adversarial conflict of the court room and the winner/looser situation

Amounts paid in both systems are usually less than you would get in court from traditional litigation

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New methods of mediation include:-

• Mediation Services including the Centre for Dispute Resolution

• Latest idea is to solve disputes online. A number of websites including www.theclaimroom.com and www.mediate.com/odr

• This is making mediation more accessible to the masses and therefore more popular.

● Common in domestic disputes, but also used in industrial relations

● An impartial third party is used  ● Several meetings: e.g. mediator & both parties, mediator & each party separately; mediator & both parties. All meetings normally confidential (even from the other party). ● Lawyers and other representatives discouraged but sometimes permitted. Costs lie where they fall. ● Mediator is a facilitator : usually does not give opinion. A conciliation is similar, but may express her own opinion and suggest how a court would decide.

Key facts about mediation and conciliation

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Arbitration

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The Arbitration Act 1996 has two key principles

• 1 – the object of arbitration is to obtain the fair resolution of disputes by an impartial tribunal without unnecessary delay or expense

• 2 – the parties should be free to agree how their disputes are resolved, subject, only to such safeguards as are necessary in the public interest

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Key features of Arbitration to include in an essay are:

• Parties are free to choose the number of arbitrators they have• If they cannot agree then only 1 arbitrator should be appointed• The Institute of Arbitrators provides trained arbitrators for major

disputes• Parties decide on the procedure of the arbitration• When necessary witnesses may be called to give evidence.• If witnesses are to be called then there is flexibility as the

parties in consultation with the arbitrator decide the date, time and place they are to be heard.

• The decision made by the arbitrator is called an award and is binding on all the parties. It can even be enforced through the courts if necessary.

• Decision is usually final but can be challenged in the courts on the grounds of serious irregularity in the proceedings or on a point of law

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What are the Advantages and Disadvantages of Arbitration?

• Parties free to make own agreement and decide how formal or informal the procedure is to be

• Parties can choose arbitrator ie technical or legal expert

• Expert knowledge can be gained if necessary which may save time in calling expert witnesses etc

• Convenient for parties, hearing time and place can be arranged around them

• Flexible procedure as parties in control = more informal and relaxed than court

• Quick• Private• Cheaper than court• Award final and can be enforced

through courts

• Imbalance of power between parties

• Lack of public funding• Lack of legal knowledge• Expensive arbitrators fees• Expensive fees if oral

arbitration opted for• Limited Rights of Appeal• Delays in commercial cases

may be as great as those in court

Activity ....• We have now covered 4 of the main types of ADR ...

Let’s have a recap.

Read through the case study and answer the following questions ....

a. What type of ADR was used it this case? Explain its key features.b. What are the advantages and disadvantages of using ADR?c. Which is the best way to solve a dispute: ADR or the Civil courts?

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Tribunals …

The Half way …

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TribunalsPeach Grey v Sommers

illustrates that tribunals are a half way house …

C claimed wrongful dismissal from D, and put pressure on some witnesses.Committing C to prison for a month for contempt of court The High Court said an Employment Tribunal exercises the judicial power of the state

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Examples of Tribunals

• Social Security tribunals• Rent tribunals

• Immigration Tribunals• Mental Health Tribunals• Employment Tribunals

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• What happened in Bache v Essex CC?

• What happened in Stefan v GMC?

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Rights of Appeal ...• Statutory right of appeal in some cases but not

in others. For example:

• Employment Tribunal ► Employment Appeal Tribunal ► Court of Appeal

• Any tribunal is subject to judicial review if it exceeds its powers or violates the principles of "natural justice".

• Most tribunals have a statutory duty to give (brief) reasons for their decisions, and others may sometimes have to do so as a matter of fairness

What does the case of Yeboah v Crofton [2002] tell us regarding tribunals?

 

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Advantages DisadvantagesParties are in control The rights of appeal are limitedProcedure is flexible and parties can choose the best for their situation

Legal aid not available and this may disadvantage an individual.

Matter is dealt with in private If a professional is used his fees may be expensive

Much cheaper andquicker than court

Unexpected legal point may arise which is not suitable for decision by a non-lawyer

Award is final and can be enforced through the courts

This method is expensive and can take a long time compared to other methods of ADR therefore it can be unpopular with the lay person

Experts in a particular field can be used.

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Conclusion…

• ADR is an increasingly popular method of resolving disputes outside of the traditional court system.

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