Unit1: The Nature of Law and the Welsh

and English Legal Systems

Civil Courts: Civil Process

Alternative Dispute Resolution
 Objectives
• Explain the need for Alternative Dispute Resolution instead of
litigation.
• Explain the four main types of Alternative Dispute Resolution:
negotiation, mediation, arbitration and conciliation.
• Discuss the types of cases where each form of ADR may be used.
• Evaluate the advantages and disadvantages of the four different
forms of alternative dispute resolution.
 Introduction
• Alternative Dispute Resolution, or ADR is the means of
resolving a dispute without having to go to court.
• The use of ADR is encouraged by the Civil Procedure Rules,
where Part 1 contains an overriding objective that judges have
to deal with cases justly and fairly.
• There are four main types of ADR:
- negotiation
- mediation
- conciliation
- arbitration
 Consider the following scenario:
Family A have lived next door to Family B for over 20 years.
The children of the families go to school together and the two
families regularly go on holidays together and meet for parties
around each other’s houses.
However, recently Family B have built a shed that crosses the
boundaries into Family A’s garden. Family A are annoyed
that their light has been taken and they feel that Family B are
“trespassing”. Family B are adamant that the shed is within
the boundaries of the house.

What is the best way to resolve this dispute?

Types of Alternative Dispute Resolution
Why do you think these alternatives may be better than litigation, or
going to court?

NEGOTIATION MEDIATION

CONCILIATION ARBITRATION
 Negotiation
 Involves solving the dispute with the parties directly……

Can you think of any examples?

 Could involve solicitors that result in a settlement before

the court date.

 “Modern” methods of negotiation – DIY, on-line

 Biggest method of ADR – completely private, easy,

minimum cost
 Mediation
• Involves having a third party acting as a “referee”.

• Particularly popular in family cases – Family Law Act 1996.

• “Modern” methods = Online mediation, Mediation Centres

• Mediator cannot suggest ways to compromise – the parties must be encouraged to come
to their own decision.

• Risk it is becoming seen as compulsory – Dunnett v Railtrack where an adverse costs

order was given to parties who refused to mediate.

• 2011 – Introduction of MIAMs which are Mediation Information Meetings and this is a
compulsory initial meeting for all divorcing couples. The meeting costs around £140 and
will assess whether your case is suitable for resolution through mediation or whether
court would be more appropriate.

• Justice minister supports government plans for mandatory mediation , The Guardian 7 January 2014
 Mediation Activity
 Research Mediation services available away from the
conventional solicitor’s office.

 Examples include:

DMS – Dispute Mediation Services - http://

disputemediationservices.co.uk/index.html

CEDR –
https://www.cedr.com/

The Mediation Room –

https://www.themediationroom.com/

West Kent Mediation –

http://wkm.org.uk/
Mediation Evaluation
On a Post-It note, make a note of an advantage or
disadvantage of mediation, particularly in relation to
the government’s compulsory mediation scheme and
stick it on this table.

ADVANTAGES DISADVANTAGES
 Mediation
Evaluation
ADVANTAGES DISADVANTAGES
1. Good alternative to lengthy and expensive court
proceedings and will hopefully reduce the number of
divorces dealt with by the courts. Initial assessment only 1. It is not compulsory to commit to the process after the
costs £140 which, although a considerable amount, is still initial assessment so people could end up spending more
cheaper than court. The average cost per client of money by taking it to court anyway.
mediation is £535 compared with £2,823 for going to
court.

2. Successful mediation takes approximately three to five

2. Mediator is independent and the mediator will be days to resolve whereas court could be over in one day.
agreed by the parties. It can take place as often as the parties like and are
willing, so it can therefore be long drawn out.

3. Provides people with a quicker, cheaper and more

3. Although a lot of family mediators tend to be lawyers,
harmonious way of dealing with disputes. With the
this is not a requirement, so there will be no legal
scrapping of legal aid in such cases, it is the
expertise if a legal point arises.
government’s alternative to save money.
 Mediation Evaluation
ADVANTAGES
4. The new scheme will not apply to those who have
been victims of domestic violence, so it therefore
protects the victim and prevent acrimonious meetings
between the parties.
5. All discussions are confidential and held in private,
usually on neutral ground.
6. The agreement is legally binding and can be
enforced by the court and there is evidence to
suggest that there are certain matters which are more
suitably resolved via mediation.
DISADVANTAGES
4. Many people take legal advice alongside mediation,
so they end up saving very little, if anything at all.
5. Some couples are worried about being in the same
room as their ex partner and this can often cause
undue stress and anxiety.
6. If no agreement is reached, then the parties have to
start again because neither partner is allowed to use
the content of the sessions as evidence in legal
proceedings.
 Conciliation
 Involves third party taking a more ACTIVE role in suggesting
ways to come to a settlement.

 Common in industrial disputes – ACAS is the biggest

conciliatory body.

 “Prevention rather than cure” approach.

 Also used in access to services for the disabled.

 Conciliation can also be used to prevent industrial strikes.

 Conciliation
Activity
 Visit www.acas.org.uk to research the role of ACAS.

 Watch the video at https://www.youtube.com/watch?v=1fOsYkxr-UI and make a note of

other roles and responsibilities that ACAS have, making them one of the biggest
conciliators in the UK. What other initiatives have ACAS introduced to prevent industrial
strikes from happening?

 Use reputable news websites to research information surrounding the following industrial
disputes:
- Junior Doctor strikes
- Southern Rail strikes
- London Tube driver strikes
What was the role of ACAS, if any in these cases? How has the dispute been resolved?

 Research some further examples of occasions where ACAS may have intervened to
prevent or control a strike.
 Arbitration
• Governed by the Arbitration Act 1996
• Common in commercial contracts and sporting disputes.
• Award is binding on the parties
• Flexible procedure – number of witnesses, where, when, time etc.
• Can choose specialist in the field OR legal professional as
arbitrator
• Must be carried out in a judicial manner in line with natural justice.
• Scott v Avery clause – agreement to arbitrate before contract –
look at www.abta.co.uk for some example of these clauses in
holiday contracts.
Arbitration Act 1996
 s1 Arbitration Act 1996 states,
(a) The object of arbitration is to obtain the fair resolution of disputes by an impartial tribunal without
unnecessary delay or expense;
(b) The parties should be free to agree how their disputes are resolved, subject only to such safeguards as
are necessary in the public interest.

 An agreement to arbitrate will usually be in writing; the Arbitration Act 1996 applies only to written arbitration
agreements. The precise way in which the arbitration is carried out is left almost entirely to the parties’ agreement.
 s15 Arbitration Act 1996 states that the parties are free to agree on the number of arbitrators, so that a panel
of two or three may be used or there may be a sole arbitrator. If the parties cannot agree on a number then the
Act provides that only one arbitrator should be appointed.
 The Act also says that the parties are free to agree on the procedure for appointing an arbitrator. Most
agreements will either name an arbitrator or provide a method of choosing one. It is often provided that the
president of the appropriate trade union will appoint the arbitrator.
 The Institute of Arbitrators provides trained arbitrators for major disputes. In many cases, the arbitrator will be
someone who has expertise in the particular field involved in the dispute, but if the dispute involves a point of law
the parties may decide to appoint a lawyer.
 If there is no agreement on whom or how to appoint, then, as a last resort the court can be asked to appoint an
appropriate arbitrator.
 Arbitration Act 1996
The actual procedure is left to the agreement of the parties in each case, so that there
are many forms of hearing:

Paper Hearing
This is where the two sides put all the points they wish to raise into writing and submit
this, along with any relevant documents, to the arbitrator. He will then read all the
documents, and make his decision.

Oral Hearing
Once the arbitrator has all the documents, both parties will attend a hearing at which they
make oral submissions to the arbitrator to support their case.

The decision made by the arbitrator is called an award and is binding on the parties. It
can even be enforced through the courts if necessary. The decision is usually final,
though it can be challenged on the grounds of serious irregularity in the proceedings on a
point of law.
 Arbitration
Activity
 Visit http://www.tas-cas.org/en/index.html to research the role of the Court of Arbitration
for Sport.

 Use reputable news websites to research information surrounding the following disputes
heard at the Court of Arbitration for Sport:
- Luis Suarez biting ban
- Russian Olympics doping ban.

What was the role of Court of Arbitration for Sport, if any in these cases? How has the dispute
been resolved?

 Research some further examples of occasions where the Court may have intervened to
resolve a dispute in the world of sport.
 Arbitration
Activity
 Visit http://www.tas-cas.org/en/index.html to research the role of the Court of Arbitration
for Sport.

 Use reputable news websites to research information surrounding the following disputes
heaard at the Court of Arbitration for Sport:
- Luis Suarez biting ban
- Russian Olympics doping ban.

What was the role of Court of Arbitration for Sport, if any in these cases? How has the dispute
been resolved?

 Research some further examples of occasions where the Court may have intervened to
resolve a dispute in the world of sport.
 On a Post-It note, make a note of an advantage or

Arbitration disadvantage of arbitration and stick it on this

table.

Evaluation
A Padlet could be used for this for a more
interactive, digital alternative.

ADVANTAGES DISADVANTAGES
 Arbitration

ADVANTAGES DISADVANTAGES

The parties can choose their own arbitrator, and can An unexpected legal point may arise in the case which is not
therefore decide whether the matter is best dealt with by a suitable for decision by a non-lawyer arbitrator.
technical expert , a lawyer, or a professional arbitrator.

Questions of quality can be decided by an expert in the If a professional arbitrator is uses, his fees may be
particular field, saving the expense of calling expert expensive.
witnesses and the time that would be used in explaining all
the technicalities to a judge.

The hearing time and place can be arranged to suit the It will also be expensive if the parties opt for a formal
parties. hearing, with witnesses giving evidence and lawyers
representing both sides.
 Arbitration
ADVANTAGES DISADVANTAGES
The actual procedure is flexible and the parties can choose The rights of appeal are limited.
that which is more suited to the situation, resulting in a
more informal and relaxed hearing that in court.

The matter is dealt with in private and there will be no The delays for commercial and international arbitration
publicity. may be nearly as great as those in the courts if a
professional arbitrator and lawyers are used.

The dispute will be resolved more quickly that through a

court hearing.
Arbitration proceedings are usually much cheaper than
going to court.
The award is normally final and can be enforced through
the courts.
 Exam Practice
For each form of ADR, write down the 5 most important things to include in an exam answer. When you are
done, pass your answers to your partner for marking!! We will then discuss the most important. Also think
about advantages and disadvantages of each form of ADR.

NEGOTIATION MEDIATION

CONCILIATION ARBITRATION