What are the alternative dispute resolution ways according to the English law
When there is a dispute between two or more parties, there are several ways that the parties can choose to solve it. The most common and best known way is taking the case to court with the assistance of a lawyer. However there are other ways of resolving disputes that people are often unaware of and these can be even more satisfactory. These methods are known as alternative dispute resolution and can provide an alternative to expensive litigation.
The word “negotiation” comes from the Latin word negotium. The negotiation process consists in an informal approach between the parties themselves or their lawyers. This is the quickest and cheapest form of solving the problem. The people involved in the dispute enter directly and privately into contact to handle the issue. There is not a third entity controlling the affected persons’ decision.
Mediation involves a third party who is unconnected to the dispute taking part and therefore neutral . It appears to help the parties in reaching an agreement. This person is called mediator, is not entitled to give his personal opinion about the dispute in question but simply to mediate between the disputants. His main duties are helping the parties to define their positions, to clarify their petitions and arrange appointments between them until solving the case. A good mediator is a person who has been trained to give assistance to the parties in the way of researching good and satisfactory solutions.
Mediation is based on voluntariness, confidentiality and dialogue.
A step higher, it is the conciliation process. The word “conciliation” comes from the Latin and means to assemble, unite or win over. It is managed by the conciliator, who has similar duties to the mediator, but with a very big difference, he is entitled to suggest solutions to the case and to approach the parties’ positions. The principles of the conciliation process are:
Voluntariness: The parties have the right to withdraw from the conciliation process at any time.
Impartiality: The conciliator is not related with any of the parties. If this compromise is breached the parties can ask for changing the conciliator.
Confidentiality: The information given by the parties in the process is absolutely confidential, it means that only the parties and the conciliator can have access to it.
Good faith: The information given by the parties must be reliable. It is important to achieve a real solution to the case.
If the parties decide to initiate an arbitration process, according to the Arbitration Act 1996, they will have to submit to an arbitrator, to a panel of arbitrators or to an arbitral institution. It is appointed by the parties themselves or, if they don’t achieve a settlement in that point, the court can be asked to select one. This system is pretty similar to the formal procedure in a court with a judge. In fact, the decision taken by an arbitrator is called “award” and it binds the parties. If they don’t obey this commitment the court can enforce them to do it. The arbitral award can only being taken to the court if it is questioned about serious irregularity in the proceeding or on a point of law. Arbitration is an easier way of achieving an agreement because it offers: flexibility to choose the time, place and sort of procedure; speed, and cheaper costs.