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 they parties can resolve it. The best known way is taking the case to court with the assistance of a lawyer. However, sometimes disputes can be resolved in a faster, cheaper and less stressful manner through alternative dispute resolution.
The word ‘negotiation’ comes from the Latin word negotium. The negotiation process consists of an informal approach between the parties themselves and/ 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 is based on voluntariness, confidentiality and dialogue. It involves a neutral mediator, who is unconnected to the dispute, helping the parties to reach an agreement.
The mediator is not entitled to give his personal opinion about the dispute but simply acts as a conduit between the disputants. His main duties are helping the parties to define their positions, clarify their petitions and arrange appointments between them until the case is resolved. A good mediator is trained to give assistance to the parties in researching satisfactory solutions.
A step higher, it is the conciliation process. Of Latin origin, the word ‘conciliation’ means to assemble, unite or win over. The conciliation process is managed by the conciliator, who has similar duties to the mediator, but with one 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 precondition is breached the parties can ask for a different conciliator;
- confidentiality – the information given by the parties in the process is absolutely confidential; 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 an ‘award’ and is binding on the parties. If they don’t obey this commitment the court can order them to do it. The arbitral award can only be challenged in court if questions arise about a 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 often cheaper costs.