What is Alternative Dispute Resolution?
Alternative Dispute Resolution is a means of resolving disputes by using an independent third party, rather than taking the matter to court. This independent party will help parties resolve their issues; however they cannot impose a solution. The idea is that ADR is voluntary and either party is able to withdraw at any time. The proposed solution does not have to be accepted.
Using Alternative Dispute Resolution
The parties are free to choose the form of ADR they feel would be most appropriate to their circumstances. This decision may have been made prior to the dispute and the relevant clause will be contained within a contract made between the parties in case of a dispute arising. If this is not the case, the parties can reach an agreement on the best form to use at the time of dispute. A solicitor will always recommend the best forms of ADR to a client if it is relevant to the case. It is also the courts’ obligation to encourage ADR between the parties if appropriate. There are two main organizations that provide ADR; the Centre for Dispute Resolution (CEDR), which is an independent non-profit making organization, and The ADR group, which is a private company that also undertakes mediation. The Chartered Institution of Arbitrators, The Academy of Experts and Mediation UK are also available to provide ADR services.
Types of Alternative Dispute Resolution
Mediation is relevant in both a business capacity as well as in personal disputes. The appointed mediator will receive a written statement from both parties and will discuss the case with them to understand their perspective on the issue(s). The mediator will then identify the real areas of disagreement and focus on the important issues that need resolving. His role is to tell the parties his view point without prejudice and try to find a constructive solution to the problem; however this solution is not binding on the parties. All information provided to the mediator is kept confidential. The most common form of mediation is for the parties to meet fact-to-face to enable the process to be completed quickly and efficiently. However, there are alternatives to this; the parties do not have to meet, the matter can be dealt with through correspondence or via telephone conversations.
The parties will initially go to mediation to resolve their disputes; however this method is not always as effective as the parties will need it to be due to the inability of enforcing the solution provided by the mediator. Therefore the matter will be referred to arbitration where the solution is binding and can be enforced by the courts under the Arbitration Act 1996. The original mediator can be appointed as the arbitrator; this can prove to be more efficient for the parties as the mediator is already familiar with the facts. This is an effective method for business disputes as it can be more cost effective than pursuing the issues at court. There may well be a clause in the business contract that states the issue must be resolved either at mediation or arbitration.
Mini-trial or structured settlement procedure
This form of ADR consists of the parties appointing a neutral third party to sit as the chairman of the tribunal. Other members that will take part in the min-trial will be representatives of the parties that are not directly involved in the dispute, but have the authority to reach a solution as they feel appropriate. The representatives will read out the cases for the party they represent and then negotiate, with the chairman, an amicable solution.
Expert and Judicial Appraisal
The parties can agree to refer their dispute to an expert in the field, who will then give his specialist opinion on the matter. This opinion is not binding; however it can influence the next steps that the parties decide to take.
Judicial appraisal can be sought by the parties, which consists of former judges or senior counsel giving a preliminary view on the legal position. This will be done in The Centre for Dispute Resolution (CEDR); the viewpoint given will not be binding and will once again depend on whether or not the parties agree to end the matter with the opinion provided.
Ombudsman schemes have been provided by the Government for private as well as public sector organizations. The idea is that the Ombudsman will resolve issue without having to refer the parties to litigation. This scheme is relevant to areas such as local government, financial services, housing, legal services etc.