Alternative Dispute Resolution

1. Produced by Dr Jepson and Mrs Lindley • Ensure all mobiles are switched off • Feel free to ask questions – just raise your hand first • Have your précis notes (Ch.10 of The ELS) to hand so they can be checked • Updated May 2013 Alternative Dispute Resolution

2. Alternatives to the Courts Why do we need alternative ways of resolving disputes? Draw a table showing the strengths and weaknesses of the civil court process.

3. Encouraging ADR… • Woolf report recommended more use of ADR. • Judges now have a duty to encourage ADR. • 1999 Civil Procedure Rules allow judges to “stay” court proceedings so ADR can be tried first.

4. ADR Methods • Negotiation • Mediation • Conciliation • Arbitration • Also, some consider domestic tribunals to be a form of ADR.

5. Negotiation • Dispute resolution at its simplest • Generally quicker and cheaper than other methods. • How may the doctrine of Judicial Precedent help parties reach a settlement?

6. Mediation • Neutral mediator helps parties reach a compromise solution. • Aim is to encourage the parties to find common ground. • Mediator does not suggest solutions.

7. Mediation Questions… • Give examples of the types of cases where mediation is often used. • What is a “formalised settlement conference”? • What is the typical cost of a mediator? How does this compare to the cost of going to court?

8. Conciliation • Neutral third party plays an active role in suggesting a solution. • Process is now generally regarded as another form of mediation. • Often used in unfair dismissal cases.

9. Arbitration • Both sides agree to let a third party decide a solution. • Arbitrator may be a lawyer or, alternatively, an expert in the field of the dispute. • Either way, the decision is legally binding.

10. Arbitration Act 1996 • Private arbitration is now governed by the Arbitration Act 1996. • Write out s.1 Arbitration Act 1996in your own words. • What does it say?

11. Scott v Avery Clause • Included in many commercial contracts (see example on p.126). • Court will refuse to deal with the dispute. • Why do you think many companies include these clauses in their contracts?

12. Pros and Cons… In pairs, produce a list showing the advantages and disadvantages of the different methods of ADR.

13. ADR in Practice • It is important to be able to give examples of when / where / how ADR is used in practice. • Produce a chart with column 1 listing the different types of ADR and column 2 giving examples of when they are used in practice.

14. Tribunals … 2 kinds – Domestic tribunals Administrative tribunals • Domestic tribunals may be considered a form of ADR; administrative tribunals are slightly different.

15. Domestic Tribunals … • “In-house” tribunals set up by private bodies, usually for their own internal disciplinary control. • Examples: Law Society, General Medical Council, FA

16. Administrative Tribunals • Operate alongside the court system. • Created to give people a method of enforcing their entitlement to certain social rights, e.g. employment rights. • Must be used instead of court proceedings.

17. Administrative Tribunals • Legally qualified chairperson, with two lay members who have specialist knowledge of topic. • Use of lawyers is allowed but generally no legal funding is available. • Deal with over a million cases each year.

18. Ombudsmen • Individuals appointed by the Government to deal with disputes outstanding in certain areas. • Examples: Prison Ombudsman, Legal Services Ombudsman.

19. Ombudsmen • Role is to investigate the way in which a complaint was originally dealt with. • Referrals may only be made through an MP, local councillor or MEP. • Have little real power but reports are taken very seriously.

20. Exam Question… • Plan, then write, answers to the exam questions on page 131 of ‘The ELS’. • Also, plan the below question: ‘Discuss the argument that using alternative methods of dispute resolution is better than using the courts.’(OCR, 2003)