Alternative Dispute Resolution Mechanisms

When court action is not the best way of solving a dispute, a wide range of alternative methods of dispute resolution also referred to as ADR may be applied. Three main forms of ADR can be identified.

Mediation
In mediation, an impartial expert talks to both sides separately, as well as together if needed and helps come up with a solution that both can accept. The mediator does not just tell you what you should do, but advises on issues, asking questions that help people look at their own behaviour.

Conciliation

Conciliation is similar to mediation but is normally used when there is a particular legal dispute, rather than more general problems. A conciliator will normally be there to encourage the two sides to come to an agreement between themselves whereas a mediator will often suggest their own solution.

Arbitration
Arbitration uses an impartial outsider (an arbitrator) to decide between two claims. The arbitrator acts like a judge, making a firm decision on a case. The two sides of the dispute will normally agree in advance whether the arbitrator's decision will be legally binding (so they have to go along with the decision) or not (so they can still decide to go to a civil court). They cannot agree to make it legally binding and later take court proceedings because they did not like the decision we made.

Arbitration can be used to settle individual, family or community disputes. If you and the other party agree to go to arbitration, then it may be a quick way of resolving a problem without the stress and expense of going to a normal court.

As stated above, both sides have to agree to go to arbitration. It is faster and less formal than a court and much cheaper. Both sides must agree to arbitration by signing an agreement, but can take advice from an independent adviser like a lawyer before you sign.

Pressure to use ADR
Following the Woolf reforms of the civil justice system, the Civil Procedure Rules positively encourage the use of ADR. Active case management under Civil Procedure Rule 1.4 involves:
‘… encouraging the parties to use an alternative dispute resolution procedure if the court considers that to be appropriate and facilitating the use of such prcedure…’.

On filling out the Allocation Questionnaire, the parties are invited to apply for one-month stay of proceedings in order to explore resolution through ADR. The courts will then order a stay of the proceedings for ADR to take place. The Court is now prepared to punish parties who refuse to use ADR by depriving them of costs, even if they are successful in their court action.