Tittle Pages

1. Introduction 1

2. Types of Alternative Dispute Resolution 3

3. Advantages of Alternative Dispute Resolution 10

4. Disadvantages of Alternative Dispute Resolution 12

5. Analysis of contribution of Alternative Dispute Resolution 14

6. Conclusion 16

7. Bibliography 17

1
Introduction:

Civil justice system allows the injured person to hold the others

accountable for their actions. If the court finds that person is liable, that party

usually has to 'show the money' and pay damages to the injured party.1

However, it will be costly to use the court proceedings to resolve the problem

between the parties who came into dispute, especially in terms of money and

time, as the court proceeding can take longer to end. Besides, it will caused the

individuals who involve in the dispute be traumatic and the outcome or result for

1
Available at http://study.com/academy/lesson/what-is-civil-justice-definition-process-rules.html
accessed 20 March 2015

2
 the case may not always satisfy the dispute parties. An additional problem by

using the courts is that there is nothing to stop or prevent the details of the

cases being published in both local and national newspapers.2 So, more and

more people and business seeking other method to resolve their dispute rather

than litigation. Alternative dispute resolution (ADR), is the method of resolving

the dispute between the parties outside the court.

Start from 1990, there is a trend to use ADR. This can be seen in the

Woolf Reform, one of the recommendation of Lord Woolf is encourage people

who came into dispute to use ADR both in pre-action protocol as well as after

the commencement of civil proceedings.3 Pre-action protocol is a list of things

which should be done by the claimant before a case is start4 Thus, the Civil

Procedure Rules allow the judges to ‘stay’ the court proceedings, which means

to stop the proceedings temporarily in order to give a chance to the parties to

try to use ADR.5

Besides UK, ADR began to spread around the world and first is the

common-law country, which are Canada, Australia and New-Zealand. ADR is an

approach that is faster, less-stressful and also cheaper than using the court

2
Jacqueline Martin, The English Legal System (6th edn Hooder education, London 2010)122
3
Lord Woolf in his ‘Access to justice’ report
4
Jacqueline Martin,Rebecca Huxley-Binns, Unlocking English Legal System (4th edn Hooder
education,Croydon 2014)125

5
Jacqueline Martin, The English Legal System (6th edn Hooder education, London 2010)122

3
 proceedings. There are variety kind of ADR can be used. It encompasses

negotiation, mediation, conciliation and arbitration.6

Types And Contribution of Alternative Dispute Resolution:

Employment Cases

Employment cases is a case which can be consider has long used of ADR. In

settling down the employment cases, ADR is used in the shape of Advisory Conciliation

and Arbitration Service (ACAS). ACAS will then contact the two parties who came into

dispute and offer in order to attempt to resolve their dispute without the need for the

matter to go to a longer procedure that is tribunal. One of the advantage by using ACAS

is they will provide a specially trained officers who have a great deal of experience in the

6
Available at http://siteresources.worldbank.org/INTECA/Resources/15322_ADRG_Web.pdf accessed 20
March 2015

4
field of employment disputes. However, there is also a criticism that the amount paid in

such settlement will be less than the amount would have been awarded by a tribunal.7

Negotiation

Negotiation, one of ADR which is the most popular method attempted first to

resolve a dispute. This is a voluntary process which can be an option for anyone who

have a dispute with another person to meet and negotiate directly with them to reach a

compromise. In the process of negotiation, both of the parties will be remained in the

control of outcome, no result imposed on the parties and they are allowed to walk away

from the process at any time.8

7
Jacqueline Martin, The English Legal System (6th edn Hooder education, London 2010)122
8
Available at http://www.frostbrowntodd.com/resources-01-22-20071.html accessed 18 March 2015

5
 Negotiation can be conducted with or without the intervention or assistance of

a third party, like solicitor. A negotiator will focus on solving the problem and satisfy the

interest of both parties without determining right or wrong. The parties must conclude

the actual terms of the agreement that they had agreed based on their desired.9 If the

parties unable to come to come to an agreement, they can take the matter further,

instructing solicitor. The solicitors will try to negotiate a settlement. In fact, the lawyers

for the parties will always continue to negotiate on behalf of their clients. This is one of

the reason that the high number of cases are settled out of court.

Mediation

Mediation means there is a neutral person, mediator who are mutually

accepted by the parties act as a go-between to help them to reach a voluntary

settlement of case, during the confidential or face-to-face meeting. There are three

types of disputes settled by mediation, that is family, workplace A typical mediation

begins with the parties have a meeting in the same room or open forum. Each of them

giving a short presentation to the mediator. This is to give an overview of the facts of

the party’s case to the mediator and the mediator will start to discuss the issue with the

9
Available at http://www.justice.gc.ca/eng/rp-pr/csj-sjc/dprs-sprd/res/drrg-mrrc/03.html accessed 18
March 2015

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parties.10 The mediator is responsible to consult with each party in the dispute and see

how much of the common ground there is between them. The mediator will also

explore the position with each party, looking at their needs and carrying offers to and

fro, while keeping confidentially. A mediator will not tell the parties his or her own view

as it is a part of job to act as a facilitator, so that an agreement can be reached by the

parties, but, he can be asked for an opinion of the merits .In this case, the mediation

becomes more of an evolution exercise, which aims at resolve the dispute.11

There is a more formal method of mediation which involves a ‘mini trial’ where

each party presents their case to a panel composed of a decision making executive from

each party. Once all the submission have been made, with the help of neutral advisor,

the executive will evaluate the two side’s position and try to come to a compromise. If

the executives cannot agree with it, the neutral advisor will act as a mediator between

them. This procedure can narrow down the issue even if the whole matter is not

resolved so that if the case go to court, it do not need to take a long time to end the

case.

Besides that, there are a free mediation services which are resolving the smaller

matters like the dispute between the neighbors arising from the matters of noise, or

boundary-fence disputes which run by trained volunteers. They will not take sides or

made judgment on right or wrong of an issue. They will visit the party who has made the

10
Available at http://www.frostbrowntodd.com/resources-01-22-20071.html accessed 19 March 2015
11
Jacqueline Martin, The English Legal System (6th edn Hooder education, London 2010)122

7
complaint and hear their side of matter. If that party agree, ask to visit the other person

and hear their point of view.

Conciliation

Conciliation is similar to the mediation in that involving the dispute resolution

that involves the negotiation between the dispute parties, assisted by a conciliator who

is an independent unbiased third party. The main difference is that the party to a

dispute are rarely involve face-to-face discussion and the conciliator will usually play a

more active role than negotiation and mediation. Once the parties agree to use the

conciliator, they will usually meet with the conciliator separately to resolve the dispute.

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The conciliator will be expected to suggest grounds for compromise and the possible

basis for a settlement.12 The conciliator will improve the communication between the

parties and interpreting the issues arise from the dispute. The parties are not bind by

the decision of the conciliator, but when the parties are come into an agreement, they

often have a contract drawn up by the parties conciliator, in order to make the

agreement binding.13

Arbitration

‘Arbitration’ covers two different processes. Firstly, following a process of agreed

upon by the parties, using a minimum court intervention to resolve their problems,. The

second meaning of ‘arbitration’ is, the parties agreed to submit their claims to private

‘arbitrator’.

Private arbitration is governed by Arbitration Act 1996 s(1),” (a) the object of

arbitration is to obtain the fair resolution of disputes by an impartial tribunal without

12
Jacqueline Martin, The English Legal System (6th edn Hooder education, London 2010)125
13
Jacqueline Martin, The English Legal System (6th edn Hooder education, London 2010)125

9
unnecessary delay or expense”14, and “(b) the parties should be free to agree how their

disputes are resolved, subject only to such safeguard as are necessary in the public

interest”.15 This means that arbitration is the parties voluntary to submit their dispute to

a judgment of some person other than a judge.

The parties can go to arbitration anytime. The parties can include a clause (Scott

v Avery clause), where the parties agree in their original contract that when there is a

dispute arising between them, they will have a dispute settled by arbitration. Where this

clause include in their contract, the court will refuse to deal with any dispute, the

matter must resolve by arbitration as they agreed.

Besides, Section 15 of Arbitration Act 1996 states that the parties are free to

choose the number of the arbitrators. If the parties cannot agree on the numbers, the

Acts provides that only one arbitrator can appoint. 16

There is an Institute of Arbitrator which provide trained arbitrators for major

disputes. The arbitrators will be someone who has expertise in particular field involved

in the case. If the disputes involves a point of the law, the parties may decide to appoint

a lawyer. ‘Awards’ is the decision made by arbitrator. It will be bound to the parties and

even can be enforced by the courts.

14
Arbitration Act 1996, s (1)(a)
15
Arbitration Act 1996, s (1)(b)
16
Arbitration Act 1996, s.15

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Advantages of ADR

All the ADR have the similar advantages. Firstly, ADR are more flexible compare

to the court proceeding. This can be seen in negotiation, conciliation and mediation. The

parties are not only free to end the process any time, it can adapt to meet the party’s

needs, for example, they can choose the time, location and the people who are involve

in the process of resolve their dispute. They also can shape the process of resolve the

dispute resolution based on their needs and benefits. Although in arbitration, the

11
parties are bound by the decision, but the actual procedure is flexible, the parties can

also choose their own arbitrator and make their own arbitration agreement, therefore

can decide whether the matter is best dealt with by a professional arbitrator. 17

The second advantage is, ADR is relatively cheaper and faster compare to the

court proceedings. The parties who are using court proceeding to resolve their dispute

will have to pay a higher cost as it included the court fees and lawyer fees. It also take

longer time to end a case as there may delay. In contrast, ADR do not have a rigid

processes, and do not have to pay the court fees, so resolve the dispute by using ADR

will be cheaper and quicker. A dispute can be resolved in matter of months or even

weeks, by using ADR. Especially in negotiation, the parties don’t have to pay any fee if

they did not instruct a lawyer.18

Besides, ADR provide a private and confidential process and settlement. ADR

allow the parties to choose the person who involved in the process of ADR. So there are

no publicity on the process of ADR, the dispute resolution and the results are keep

private and confidential. In shortly, ADR will not be conducted in an open courtroom or

result in published reasons for judgment.

Furthermore, ADR provide an informal procedure for the parties to resolve their

dispute. Unlike the court proceeding, the procedure of ADR are more relax and the

17
Available at http://www.albrightstoddard.com/blog/bid/223519/THE-ADVANTAGES-AND-
DISADVANTAGES-OF-ADR accessed 20 March 2015
18
Available at
http://www.facebook.com/l.php?u=http%3A%2F%2Fwww.lawmentor.co.uk%2Fresources%2Fessays%2Ft
he-advantages-and-disadvantages-ADR%2F&h=fAQERXWjm accessed 20 March 2015

12
parties can present their own case to the neutral third party not only the facts but also

express their feelings and what they wish to do it in the process to reach an agreement.

The parties can also choose a more convenient place rather than the court.

Under ADR, the parties are remain in full control of the process at any

settlement agreed. If there is no settlement is reached, the parties may abandon

mediation or negotiation process and start or continue with any court proceedings. ADR

can be used at any time either at the commenced of the dispute or during the court

process.

Disadvantages of ADR

Despite the advantages, the alternative dispute resolution also bring some

detriment. With the exception of arbitration, there is no guarantee solution in all the

ADR methods. If the parties unable to reach a compromise solution in the process of

ADR, they are necessary to go to court after fail to attempt at ADR. In such situation, the

additional cost have to pay and the parties have to spend more time in court

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proceedings. The money, time and effort invest in the process of ADR is wasted and all

the proceedings have to start again.

Next, the disadvantages of negotiation are the party may be of unequal power

and the weaker party will be placed at a disadvantage. This means that, if one party is

timid and the other is loud and aggressive, the timid person runs the risk of losing some

of what is legally owed to him. The agreement’s value is diminished where a party with

an interest in a matter is excluded or inadequately represent in the negotiation.

“There is some form of ADR, for example mediation, where the parties negotiate

with one another directly and come to agreement without advised or input by the ADR

practitioner on the merits or fairness of the agreement, may not be appropriate if the

party is not able to represent, their own interest, effectively, for example, because the

history of violence or other source of power imbalance or vulnerability.”19

Besides, another disadvantage is the “willingness of compromise. The use of ADR

dependant upon the willingness of the individuals to compromise and to this extent it is

arguable that the parties are more likely to settle for less whereas once they have

embarked upon court proceedings their expectation may be higher. It could be that one

of the parties does not accept there will a problem and is not prepared to

compromise.”20

19
Available at
http://www.legalanswers.sl.nsw.gov.au/guides/law_handbook/pdf/Ch20_dispute_resolution.pdf
accessed 20 March 2015
20
Available at http://www.lawmentor.co.uk/resources/essays/the-advantages-and-disadvantages-ADR/
accessed 20 March 2015

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Analysis of the contribution of ADR in the civil justice system

After the 1995 Interim Report which encourage the use of ADR, it is more

directive in the Final Report of the using of ADR which warns that, “the court will

encourage the use of ADR at case management, conferences and pre-trial reviews, and

will take into account whether the parties have unreasonably refused to try ADR or

behaved unreasonably in the course of ADR.” ADR was encouraged to use as it can

saving scarce of judicial resources. The Civil Procedure Rules was given an expression

that the public should try ADR rather than litigation. The court have given the authority

15
to order the parties to try to resolve their dispute using ADR. The judge also have the

authority to deprive the legal cost of the party if the party have behaved unreasonably

during the litigation. The effect of the rules is not to provide a direct incentives for the

parties to resolve their dispute by using ADR, but to impose the financial penalty on the

party who have unreasonable refused to use ADR.21

Although there is not stated that using the ADR to resolve their dispute is

compulsory before and also after the issue of proceedings, the inclusion in the Civil

Procedure rules that the judge’s authority to direct the parties who are in the dispute to

use ADR and the court’s discretion to impose a cost penalty on those who have the

unreasonable behavior during the course of litigation, has created a situation that the

parties can only use court proceedings to settle their dispute if there have no more

suitable way of dealing the dispute. 22

By encouraging the use of ADR, it can reduce the case which have to be consider

by the court. The court can spend more time in the other cases or a more serious case

which need to be consider. Thus, the case do not need to delay or drag for a long time

which will caused the cost of the court proceedings. Besides, in some cases, judges may

not have the necessary technical expertise or knowledge required, but ADR like

mediation or arbitration provide the trained mediator or arbitrator which has expertise

21
Available at http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1392&context=yjlh
accessed 21 March 2015
22
Available at http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1392&context=yjlh
accessed 21 March 2015

16
in the particular fields involved in the dispute. They may give a more satisfied decision

to the parties compare to the judges.

Conclusion

In my opinion, based on the statement above, ADR shall be used by the parties

who are come into a dispute. This is because it is the easiest and simplest way to resolve

the dispute. It also can save cost and time as, by using ADR the parties do not have to

pay for the court fee and other extra fees which have to pay in the court proceedings.

There is no strict rule in ADR, so the parties can use their desirable process to resolve

the dispute. Since ADR is an informal method to settle down the dispute, the parties can

resolve their dispute in a more relax and comfortable situation. Besides, if there is any

17
undesirable process or decision is made, the party are allow to leave the process of ADR

any time.

As a conclusion, there is no single answer as to whether the court proceedings or

ADR should be used as both of them have advantages and disadvantages. If the case is

not suitable to be resolved by using ADR, then the court proceedings shall be used.

However, if the cost of using the court proceedings is much more higher than the

amount of the parties claim in the dispute, then ADR shall be used.

Bibliography

Books :

Martin, Jacqueline. The English Legal System. 6th ed. London: Hooder Education, 2010.

Print.

Martin, Jacqueline, and Rebecca Huxley-Binns. Unlocking English Legal Syatem. 4th ed.

Croydon: Hooder Education, 2014. Print.

Electronic Sources :

18
Mackie, Carl. 'Alternative Dispute Resolution Guidelines'. N.p., 2011. Web. 18 Mar.

2015.

Frostbrowntodd.com,. 'Alternative Dispute Resolution Techniques Resolving Disputes

Without “Going To War”: Frost Brown Todd Law Firm'. N.p., 2015. Web. 18 Mar. 2015.

Justice.gc.ca,. 'Negotiation - Dispute Prevention And Resolution Services'. N.p., 2015.

Web. 18 Mar. 2015.

Albrightstoddard.com,. 'THE ADVANTAGES AND DISADVANTAGES OF ADR'. N.p., 2015.

Web. 20 Mar. 2015.

Lawmentor.co.uk,. 'Lawmentor.Co.Uk - Resources - The Advantages And Disadvantages

Of Using Alternative Dispute Resolution'. N.p., 2015. Web. 20 Mar. 2015.

Study.com,. 'What Is Civil Justice? - Definition, Process & Rules | Study.Com'. N.p., 2015.

Web. 20 Mar. 2015.

Genn, Hazel. 'What Is Civil Justice For? Reform, ADR, And Access To Justice'.

Digitalcommons.law.yale.edu. N.p., 2012. Web. 21 Mar. 2015.

Tables of statutes

Arbitration Act 1966, s.1

Arbitration Act 1966, s.15

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