Natasha Mohideen LLB (UOL)

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ALTERNATIVE DISPUTE RESOLUTIONS

• Tribunals, inquiries, conciliation and arbitration.

• Reasons for establishment; functions; respective advantages and disadvantages.

• Control of tribunals.

Court hearings are not always the best way to resolve a dispute, and their disadvantages mean
that, for some types of problem, alternative mechanisms may be more suitable.
The main uses of these at present are in family, consumer, commercial, construction and
employment cases but, following Lord Woolf’s reforms of the civil justice system, these
alternative mechanisms should play a more important role in solving all types of civil disputes.
Civil Procedure Rule 1.4 requires the court to undertake case management which is stated to
include: (2) (e) encouraging the parties to use an ADR procedure if the Court considers that
appropriate and facilitating the use of such procedure;
(f) Helping the parties to settle the whole or part of the case.
In addition, Civil Procedure Rule 26.4 allows the court to grant a stay for settlement by ADR or
other means either when one or all of the parties request this, or when the court considers this
would be appropriate.
If a party fails to use ADR where the court thinks this would have been appropriate, then it can
be penalised through a costs order (Civil Procedure Rule 44.5
In Halsey v Milton Keynes General NHS Trust (2004), the Court of Appeal held that UK courts
cannot force parties into Alternative Dispute Resolution (ADR) due to potential violations of the
right to a fair trial. While not mandated, a failure to respond to an ADR invitation may be
considered unreasonable, making ADR almost compulsory in practice.
In Laporte v Commissioner of Police of the Metropolis (2015), the police were urged to
participate in Alternative Dispute Resolution (ADR) with the claimants who alleged assault,
battery, false imprisonment, and a violation of their rights under the European Convention on
Human Rights. The claim failed, yet the claimants argued against paying the winning side's
costs, citing the defendants' refusal to engage in ADR. The High Court, aligning with the Halsey
decision, concluded that there was a reasonable chance of successful ADR and reduced the
costs ordered against the claimants accordingly.
In the case of Kupeli v Sirketi (2016), Mrs Justice Whipple emphasized the importance of
sensible negotiation before escalating costs, stating that the case needed an attempt at
settlement to avoid unnecessary expenses and hardened attitudes. She highlighted the
distinction between a case where reasonable efforts at settlement were made but proved
impossible, and one where a party refused to engage, opting for litigation without attempting
resolution.
 Natasha Mohideen LLB (UOL)
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 Problems with Court hearings

Alternative methods of dispute resolution have become increasingly popular because of the
difficulties of trying to resolve disputes through court hearings. Below are some of the specific
problems posed by court hearings.

 The adversarial process

A trial in a court often leads to one side winning and the other losing, creating a
confrontational atmosphere. This adversarial approach can turn parties into enemies, even if
they didn't start out that way. This is a drawback, especially in cases where the parties need to
maintain a relationship afterward, like in child custody or business disputes. Unlike court
proceedings, alternative dispute resolution methods aim for collaborative solutions to prevent
the development of animosity.
Courts are considered more suitable when parties are strangers and want to stay that
way. Interestingly, in smaller societies with close family ties, they usually prefer negotiation over
court-like procedures to satisfy both parties and maintain group harmony.
 Technical cases
Certain disputes involve intricate technical details, such as manufacturing processes or medical
intricacies, rather than legal aspects. Ordinary judges may struggle to grasp these technical
nuances, leading to the involvement of expert witnesses or advisers. However, this process is
time-consuming and costly.
In alternative dispute resolution, experts in the specific field can replace a judge, efficiently
handling detailed technical evidence, which can be more practical and cost-effective.

 inflexible
Court hearings follow rigid procedural rules, which may not be suitable for matters mostly
private to the involved parties. Alternative methods provide flexibility, allowing the parties to
have more control over the process.

 Imposed solutions
Court-imposed solutions may lack the parties' consent, requiring enforcement. In contrast,
negotiated settlements in alternative methods involve mutual agreement, reducing enforcement
issues.

 Publicity
Court hearings are typically public, which may be undesirable in some business disputes.
Parties may prefer not to disclose financial or business details to the public due to competitive
concerns. Alternative dispute resolution methods offer more privacy in such cases.
 Natasha Mohideen LLB (UOL)
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Alternative dispute resolution mechanisms

Where, for one or more of the reasons explained above, court action is not the best way of
solving a dispute, a wide range of alternative methods of dispute resolution (often known as
ADR) may be used.
Three main forms of ADR can be identified: arbitration, mediation and conciliation:

● Arbitration is a procedure whereby both sides to a dispute agree to let a third party, the
arbitrator, decide. The arbitrator may be a lawyer, or may be an expert in the field of the dispute.
He or she will make a decision according to the law and the decision is legally binding.

● Mediation involves the appointment of a mediator to help the parties to a dispute reach an
agreement which each considers acceptable. Mediation can be ‘evaluative’, where the mediator
gives an assessment of the legal strength of a case, or ‘facilitative’, where the mediator helps
the parties to find a settlement that is in all the parties’ best interests. When a mediation is
successful and an agreement is reached, it is written down and forms a legally binding contract
unless the parties state otherwise.

● Conciliation is similar to mediation but the conciliator takes a more interventionist role than
the mediator in bringing the two parties together and in suggesting possible solutions to help
achieve an agreed settlement. The term conciliation is gradually falling into disuse and the
process is regarded as a form of mediation.

One straightforward form of Alternative Dispute Resolution (ADR) is informal negotiation

between parties, either with or without legal assistance. Many civil cases are settled out of court
through this approach. Formal ADR schemes include:

1. Advisory, Conciliation and Arbitration Service (ACAS): Mediates in industrial disputes and
unfair dismissal cases.

2. Ombudsmen:Handle disputes in insurance, banking, and complaints against central and local
government and public services.

3. Trade Organizations: Organizations like ABTA (The Travel Association) settle consumer
complaints in various industries.

4. Inquiries: Conducted into objections concerning compulsory purchase or town and country
planning.

5. Conciliation Schemes: Offered by courts and voluntary organizations to divorcing couples.

6. Arbitration Schemes: Run by the Chartered Institute of Arbitrators for business disputes.

While procedural details vary, the common goal of these ADR methods is to provide a means of
resolving disputes while avoiding some or all of the drawbacks associated with the court system
mentioned earlier.

The Ministry of Justice actively supports Alternative Dispute Resolution (ADR), emphasizing
mediation or arbitration over court proceedings for government legal disputes. This aligns with
the government's commitment to using court as a last resort. The Civil Justice Council (CJC)
 Natasha Mohideen LLB (UOL)
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established a working group on ADR in 2018, expressing doubts about the government's ADR
promotion efforts. While not proposing mandatory ADR, the CJC recommended:

1. Creation of a Judicial/ADR liaison committee for ongoing discussions between ADR

professionals and judges.
2. Increasing public awareness of ADR, including in public legal education.
3. Promoting peer mediation initiatives in schools and colleges.
4. Enhancing engagement with law schools and professional training to prioritize ADR.
5. Developing a user-friendly website with comprehensive information about ADR for the
general public, including video content.

These measures address challenges in ADR awareness, availability, and encouragement

across various sectors.
 Pressure to use ADR
Following the Woolf reforms in the civil justice system, the Civil Procedure Rules actively
promote the use of Alternative Dispute Resolution (ADR).
The pre-action protocols guide parties to consider ADR, and during the allocation
questionnaire, parties are encouraged to seek a one-month stay of proceedings for ADR
exploration.
Active case management under Civil Procedure Rule 1.4 involves the court encouraging and
facilitating the use of ADR if deemed appropriate. If parties request it, the court may order a stay
of proceedings for ADR. These measures aim to foster a culture of considering and utilizing
ADR throughout the legal process.
The Court of Appeal has shown a willingness to penalize parties for refusing to engage in
Alternative Dispute Resolution (ADR) by potentially denying them costs, even if they ultimately
succeed in the legal action. This approach was highlighted in the case of Dunnett v Railtrack
plc (2002). The court's stance reflects an encouragement for parties to actively consider and
participate in ADR processes, emphasizing its importance in the legal landscape.
A party has the right to decline an opponent's offer to mediate, but they must provide compelling
reasons to the court for doing so. In the case of Hurst v Leeming (2002), the court held that if
mediation has no real prospect of success, a party can refuse without consequences.
In Rolf v De Guerin (2011), a builder who refused to mediate and won at trial faced an appeal.
The Court of Appeal, considering the builder's refusal as unreasonable behavior, allowed the
appeal against costs. The builder's reasons, including the desire for a "day in court," were
deemed insufficient, emphasizing that parties should respond reasonably to mediation offers,
and their conduct can impact cost assessments.
The court stated that wanting a day in court is not an adequate response to the judicial
expectation that parties act reasonably in considering mediation or settlement offers.
In cases like small building disputes, it's generally recommended to use the courts as a last
resort due to potential disproportionate costs and anxiety associated with trials.
 Natasha Mohideen LLB (UOL)
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The case of Burgess v Penny (2019) involving a family estate highlighted the significance of
mediation. The judge, considering a costs order, took into account the refusal of two sisters to
mediate with their brother, even though they were no longer communicating.
The judge emphasized that mediation is not about one side getting everything they want; rather,
it should aim to find a solution both parties can accept as a better alternative to litigation.
Refusing to mediate for the sake of obtaining something even a successful trial couldn't
guarantee was deemed unreasonable in this case. The judge concluded that granting any part
of the costs out of the estate would encourage obstinacy.

A conciliation officer plays a crucial role by contacting each party or their representatives to
discuss the case and provide advice on the strengths and weaknesses of their positions. They
may share information about what each side has said, but if the case proceeds to a tribunal, this
information is not admissible without the consent of the party who provided it.
In 2014, a new ACAS early conciliation service was introduced, requiring claimants to obtain a
certificate from ACAS before bringing a claim to an Employment Tribunal. This service is cost-
effective for employers and beneficial for individuals representing themselves in legal
proceedings.
EVALUATION
While the success of conciliation schemes is often measured by the high rate of cases
withdrawn or settled, there is a potential issue with the imbalance in power between employers
and employees, particularly when the employee lacks legal representation. Simply achieving a
settlement doesn't guarantee fairness, especially when one party is under more pressure to
agree.

A study from Dickens in 1985 on unfair dismissal cases revealed that awards after a hearing
were generally higher than those achieved through conciliation. This implies that employees
might feel compelled to agree to any settlement, potentially due to the power dynamics at play.
The study suggested that the conciliation scheme could be more effective in promoting fair
settlements if conciliation officers took a less neutral stance and actively worked to help enforce
the worker's rights, preventing settlements at any cost.
 Natasha Mohideen LLB (UOL)
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TRIBUNALS
Tribunals, specializing in specific areas of law, play a significant role in settling numerous claims
and disputes, surpassing the caseload of criminal courts threefold. Although historically viewed
as less important, their impact on the legal system is evident, dealing with vital issues in
people's lives such as housing, employment, and education. While Employment Tribunals are
well-known, there are various others covering diverse topics like social security, tax, forestry,
and patents. Not all entities in this category are named tribunals; for instance, the Criminal
Injuries Compensation Authority assesses compensation applications for victims of violent
crime. Most tribunals handle disputes between citizens and the state, although the Employment
Tribunal is an exception. Tribunals are characterized by less formal procedures compared to
other courts and specialize in specific areas. However, they are expected to adhere to the
principles of natural justice, ensuring a fair hearing for both parties and impartial decision-
making, similar to the courts.
Tribunals underwent a significant reform with the enactment of the Tribunals, Courts and
Enforcement Act 2007. This legislation followed a comprehensive review of the tribunal service
initiated by the Labour Government. In 2000, the government tasked Sir Andrew Leggatt, a
retired Lord Justice of Appeal, with examining the tribunal service—the first systematic review
since the Franks Report in 1957. Leggatt focused on funding, management, structure, and
standards of tribunals, along with their compliance with the Human Rights Act 1998.

Leggatt emphasized the main characteristics required of tribunals: fairness, openness, and
impartiality, with the latter two considered components of the overarching requirement of
fairness. The review proposed benchmarks for assessing fairness, including independence from
sponsoring departments, an accessible and supportive system, jurisdiction suitable for each
area, simple procedures, effective decision-making, suitable decision-making processes,
proportionate remedies, speed in reaching finality, authority and expertise appropriate for tasks,
and cost-effectiveness.
The final report of the review, titled "Tribunals for Users: One System, One Service," was
published in 2001. The review covered 70 different administrative tribunals in England and
Wales, finding a wide range in quality, from excellent to inadequate. It highlighted significant
weaknesses in the tribunal system, expressing concerns about accessibility, user-friendliness,
lack of independence from the Ministries whose decisions were under tribunal scrutiny, and an
overall lack of coherence in the tribunal system.