Types of Alternative Dispute Resolutions
Introduction- This factsheet is about the different types of Alternative dispute resolutions (ADR), including advantages and disadvantages for each of them.
ADR– is a method mostly used for civil cases to deal with legal conflicts and disputes that are resolved privately other than through hearing in the public courts.
Binding is a decision of an agreement or promise involving an obligation that cannot be broken. For example, tribunals have a panel of independent people (judge) who will make a decision for them.
Non-binding is where the decision of agreement or promise requires both of the parties to come to an agreement.Ã‚Â For example, a verbal agreement is considered to be non-binding because there is no legal force. You basically don’t have to commit to any agreement, it is optional.
Types of Alternative dispute resolutions
Tribunals- usually sit as panel, 2 of which are specialised in the dispute that is getting solved and one who us hearing the case and potentially is the judge. However, tribunals have limited power to impose fines and penalties or to award compensation and costs. More than that the parties agree on a non-binding decision- in other words the tribunals can give their own opinion on how to resolve the case but they cannot enforce both of the parties on a legal settlement or a solution.
This is similar to a court without the ritual or formality. They are involved in a number of specialist tribunal which bear their name: Employment Tribunals, Immigration Tribunals, and Social Security Tribunals etc. There are many types of tribunals but they may be classed as two main types: administrative and domestic.
Administrative – individual v state e.g. Social Security Appeal Tribunal, Immigration Tribunal and Mental Health Review Tribunals. Note: exceptions e.g. Employment tribunals and rent tribunals
Domestic Tribunals – often set up by professional bodies to deal with ‘in-house- issues and apply rules within that body. E.g. Solicitors Disciplinary Tribunal, GMC, FA, GTC etc
Solving disputes using tribunals is quite cheap and cost effective as mostly expertise who are specialised in a certain field in civil law reduces the time needed and the cost of using a qualified judge.
Tribunals embrace many valuable assets in aiding the justice system. They are cost effective as tribunals do not charge a fee, and each party pays their own expenses compared to the courts where the loser pays for the legal fees of the winning party. Another way that tribunals are cost effective is the fact that there is no need for a specialized court house for cases to be heard. Tribunals are also less expense because members sitting on tribunal panels are cheaper to employ compared to judges and there is no need for legal representation.
Mediation is “Mediation is an effective way of resolving disputes without the need to go to court. It involves an independent third party – a mediator – who helps both sides come to an agreement.” Reference from ()
The role of the mediator is to help parties reach a solution to their problem and to arrive at a result that both parties are content to accept. Mediators avoids being biased, and are not favourable to one party when making judgements or giving guidance. They are basically responsible for developing effective communications and building compromise between the parties. The focus of a mediation meeting is to reach a common sense settlement agreeable to both parties in a case.
In Civil cases
Mediation is quite simple and there are no complex rules therefore the case/dispute is solved efficiently there is a 3rd party involved, but have no active role i.e. no decision making therefore there is no determination of accountability, solution personalised to parties’ needs. As Parties are paying for mediation it encourages for them to settle to an agreement, because as they are paying for it they have more value for the ADR method they are using. This is also gives the parties are full participants and can express their own views and apprehensions, where in civil litigation the parties’ legal representative such as lawyers-Ã‚Â are the only ones who represent their party unless the party “takes the stand” and is subject to question by the opposite advocate.
The first advantage is that mediation is less costly than civil litigation for many reasons: Most mediators who specialise for example in construction charge by the hour rates and the mediation usually is completed in a short period of time between 1 to 2 days, this also saves time as litigation is more time-consuming. Preparation for mediation is far easier and simpler than is required to prepare for arbitration or litigation, this is because there is not a lot of paperwork needed. lawyers are not necessary but may participate at the request of a party, this makes their case more favourable as the would be a chance that one of the party who had a legal representative wins the case. However, If the parties choose to have a binding mediation, they will have a similar conclusiveness as binding arbitration offers. Which is without the formalities and costs associated with binding arbitration. In many cases, the mediation can be held at the home involved rather than needing to schedule a place/accommodation to visit and if needed, a separate arbitration hearing at a neutral location or litigation that must be held at a court of jurisdiction. In most instances, the mediator is experienced in the issues that are in dispute and can assist the parties in the reality of their opinions and positions, ultimately making the parties settle for an agreement. Lastly, the parties should not face court filing fees and its related expenses.
Even though there are normally no lawyers present at mediation, the agreement between the parties involved is legally binding in most judicial systems. Another disadvantage of mediation is that either party can withdraw from the proceedings at any time. Reference from () overall mediation is very successful, so there is a very less chance for the parties not to settle and have some sort of agreement.
Mediation may be particularly useful when parties have a relationship they want to maintain. For instance, when family members, neighbours, or business partners have a dispute, mediation may be the ADR process to use. Mediation is also effective when emotions are getting in the way of resolution. An effective mediator can hear the parties out and help them communicate with each other in an effective and non-destructive manner. However, Mediation may not be effective if one of the parties is unwilling to co-operate or compromise for an overall settlement. Mediation also may not be effective if one of the parties has a significant advantage in power over the other i.e. may have a solicitor supporting them with their case. Therefore, it may not be a good choice if the parties have a history of abuse or victimisation.
Negotiation-is at the core of most Alternative Dispute Resolution (ADR). It has been defined as any form of direct or indirect communication where both of the parties come with an agreement. It involves inspecting the facts of a situation, showing both the common and opposing interests of the parties involved, and bargaining to resolve as many issues as possible. negotiation is done by both of the parties having no third party involved both them alone. The aim is to negotiate and settle their differences by the parties having to compromise for agreement whilst avoiding argument and dispute.
It is completely confidential mostly for those people who are going to dispute a civil case and it is the quickest method because if both of the parties come to an agreement then the case doesn’t have to go to the courts or need other types of ADR. Negation is much cheaper than taking the case to the court, meaning the parties wouldn’t have to pay for lawyers or solicitors or the expenses of a 3rd party. Lastly it allows the parties flexibility in the terms of settlement such as negotiating money or compensation and potentially doesn’t cost anything at all. However, no party is required to participate in a negotiation. The parties are free to accept or discard the outcome of negotiations and can withdraw at any point during the process. Also The parties are free to adopt whatever rules they choose, if any. Generally, they will agree on issues such as the subject matter, timing and location of negotiations. Further matters such as confidentiality, the number of negotiating sessions the parties commit to, and which documents may be used, can also be addressed.
If the parties can’t resolve their problems on their own, their problem will continue unsettled and the parties must consider another process for resolution. This is a disadvantage because cost and expense would occur for both of the parties, and this is very unfair for people or group that are less fortunate to fun for other ADR’s. another disadvantage is that, the parties themselves have to research laws and analyse their disputes amongst themselves by representing facts and evidence without legal representatives or 3rd parties.
In my opinion negotiation is effective for very minor civil cases such as the tenant has not paid rent for 4 months. Both of the parties can negotiate
Arbitration -in such an instance the courts will refuse to hear your claim until arbitration. In the process it may state how arbitration will proceed e.g. date time, venue etc. arbitration s free but the arbitrator will charge fee. An arbitrator essentially acts as a judge would if the case went to the court. The arbitrator will hear the dispute and gather evidence presented by the parties involved and will make a binding decision. The arbitrator essentially acts as a judge would if the case went to court. The arbitrator will hear arguments and evidence presented by the parties involved in the dispute and will make a binding decision to resolve the disagreement.
Arbitration, involves two parties in a dispute who agree to work with a disinterested third party in an attempt to resolve the dispute privately. Arbitration process is fairly quick. Once an arbitrator is selected, the case can be heard immediately.
Arbitration is best for cases where the parties want another person to decide the outcome of their dispute for them but would like to avoid the formality, time, and expense of a trial. It may also be appropriate for complex matters where the parties want a decision-maker who has training or experience that are specialist in the subject matter of the dispute. On the other hand, If parties want to retain control over how their dispute is resolved, arbitration, particularly binding arbitration, is not appropriate. In binding arbitration, the parties generally cannot appeal the arbitrator’s award, even if it is not supported by the evidence or the law. Even in nonbinding arbitration, if a party requests a trial and does not receive a more favourable result at trial than in arbitration, there may be penalties
Conciliation– Comparable to mediation because there is a third party involved. However, it plays a more active role, e.g. make suggestions on settlement and/ or suggestions on any compromises that should be made within the parties’ disputes. At some point during the conciliation, the conciliator will be asked by the parties to offer a non-binding settlement proposal. This means that the agreement isn’t compulsory and can be denied by the parties if they wish not to settle.
Conciliation allows the parties to have flexibility as they can choose their own timing and language, place, structure and content of the conciliation proceedings whereas the court gives you their own place, timing and the structure of content for example- whatever the date of the hearings, the party would have to be present there and then. As a conciliator you do not need a professional background i.e. any qualifications. Both conciliation is analytical and make a fair judgement. However, the process for conciliation is not legally binding so both of the parties do not have to negotiate a settlement. On the other hand, if the parties where solving their disputes in the court, it would be a process that is legally binding so the judges will decide on the settlement and they both have to agree with it.