CIVIL COURTS: CIVIL PROCESS alternative dispute resolution

Objectives Explain the need for Alternative Dispute Resolution instead of litigation. Explain the four main types of Alternative Dispute Resolution: negotiation, mediation, arbitration and conciliation. Discuss the types of cases where each form of ADR may be used. Evaluate the advantages and disadvantages of the four different forms of alternative dispute resolution.

Introduction Alternative Dispute Resolution, or ADR is the means of resolving a dispute without having to go to court. The use of ADR is encouraged by the Civil Procedure Rules, where Part 1 contains an overriding objective that judges have to deal with cases justly and fairly. There are four main types of ADR: - negotiation - mediation - conciliation - arbitration

Consider the following scenario: Family A have lived next door to Family B for over 20 years. The children of the families go to school together and the two families regularly go on holidays together and meet for parties around each other’s houses. However, recently Family B have built a shed that crosses the boundaries into Family A’s garden. Family A are annoyed that their light has been taken and they feel that Family B are “trespassing”. Family B are adamant that the shed is within the boundaries of the house. What is the best way to resolve this dispute?

Types of Alternative Dispute Resolution Why do you think these alternatives may be better than litigation, or going to court? NEGOTIATION MEDIATION ARBITRATION CONCILIATION

NEGOTIATION Involves solving the dispute with the parties directly. Can you think of any examples? Could involve solicitors that result in a settlement before the court date. “Modern” methods of negotiation – DIY, on-line. Biggest method of ADR – completely private, easy, minimum cost.

MEDIATION Involves having a third party acting as a “referee”. Particularly popular in family cases – Family Law Act 1996. “Modern” methods = Online mediation, Mediation Centres. Mediator cannot suggest ways to compromise – the parties must be encouraged to come to their own decision. Risk it is becoming seen as compulsory – Dunnett v Railtrack where an adverse costs order was given to parties who refused to mediate. 2011 – Introduction of MIAMs which are Mediation Information Meetings and this is a compulsory initial meeting for all divorcing couples. The meeting costs around £140 and will assess whether your case is suitable for resolution through mediation or whether court would be more appropriate. Justice minister supports government plans for mandatory mediation , The Guardian 7 January 2014 https://www.theguardian.com/politics/2014/jan/07/justice-minister-supports-plans-mandatory-mediation-separating-couples

MEDIATION Activity Research Mediation services available away from the conventional solicitor’s office. Examples include: DMS – Dispute Mediation Services - http://disputemediationservices.co.uk/index.html CEDR – https://www.cedr.com/ The Mediation Room – https://www.themediationroom.com/ West Kent Mediation – http://wkm.org.uk/

MEDIATION ADVANTAGES Evaluation DISADVANTAGES On a Post-It note, make a note of an advantage or disadvantage of mediation, particularly in relation to the government’s compulsory mediation scheme and stick it on this table. MEDIATION Evaluation ADVANTAGES DISADVANTAGES

MEDIATION Evaluation ADVANTAGES DISADVANTAGES 1. Good alternative to lengthy and expensive court proceedings and will hopefully reduce the number of divorces dealt with by the courts. Initial assessment only costs £140 which, although a considerable amount, is still cheaper than court. The average cost per client of mediation is £535 compared with £2,823 for going to court. 1. It is not compulsory to commit to the process after the initial assessment so people could end up spending more money by taking it to court anyway. 2. Mediator is independent and the mediator will be agreed by the parties. 2. Successful mediation takes approximately three to five days to resolve whereas court could be over in one day. It can take place as often as the parties like and are willing, so it can therefore be long drawn out. 3. Provides people with a quicker, cheaper and more harmonious way of dealing with disputes. With the scrapping of legal aid in such cases, it is the government’s alternative to save money. 3. Although a lot of family mediators tend to be lawyers, this is not a requirement, so there will be no legal expertise if a legal point arises.

MEDIATION Evaluation ADVANTAGES DISADVANTAGES 4. The new scheme will not apply to those who have been victims of domestic violence, so it therefore protects the victim and prevent acrimonious meetings between the parties. 4. Many people take legal advice alongside mediation, so they end up saving very little, if anything at all. 5. All discussions are confidential and held in private, usually on neutral ground. 5. Some couple are worried about being in the same room as their ex partner and this can often cause undue stress and anxiety. 6. The agreement is legally binding and can be enforced by the court and there is evidence to suggest that there are certain matters which are more suitably resolved via mediation. 6. If no agreement is reached, then the parties have to start again because neither partner is allowed to use the content of the sessions as evidence in legal proceedings.

CONCILIATION Involves third party taking a more ACTIVE role in suggesting ways to come to a settlement. Common in industrial disputes – ACAS is the biggest conciliatory body. “Prevention rather than cure” approach. Also used in access to services for the disabled. Conciliation can also be used to prevent industrial strikes.

CONCILIATION Activity Visit www.acas.org.uk to research the role of ACAS. Watch the video at https://www.youtube.com/watch?v=1fOsYkxr-UI and make a note of other roles and responsibilities that ACAS have, making them one of the biggest conciliators in the UK. What other initiatives have ACAS introduced to prevent industrial strikes from happening? Use reputable news websites to research information surrounding the following industrial disputes: - Junior Doctor strikes - Southern Rail strikes - London Tube driver strikes What was the role of ACAS, if any in these cases? How has the dispute been resolved? Research some further examples of occasions where ACAS may have intervened to prevent or control a strike.

ARBITRATION Governed by the Arbitration Act 1996. Common in commercial contracts and sporting disputes. Award is binding on the parties. Flexible procedure – number of witnesses, where, when, time etc. Can choose specialist in the field OR legal professional as arbitrator. Must be carried out in a judicial manner in line with natural justice. Scott v Avery clause – agreement to arbitrate before contract – look at www.abta.co.uk for some example of these clauses in holiday contracts.

Arbitration Act 1996 s1 Arbitration Act 1996 states, (a) The object of arbitration is to obtain the fair resolution of disputes by an impartial tribunal without unnecessary delay or expense; (b) The parties should be free to agree how their disputes are resolved, subject only to such safeguards as are necessary in the public interest. An agreement to arbitrate will usually be in writing; the Arbitration Act 1996 applies only to written arbitration agreements. The precise way in which the arbitration is carried out is left almost entirely to the parties’ agreement. s15 Arbitration Act 1996 states that the parties are free to agree on the number of arbitrators, so that a panel of two or three may be used or there may be a sole arbitrator. If the parties cannot agree on a number then the Act provides that only one arbitrator should be appointed. The Act also says that the parties are free to agree on the procedure for appointing an arbitrator. Most agreements will either name an arbitrator or provide a method of choosing one. It is often provided that the president of the appropriate trade union will appoint the arbitrator. The Institute of Arbitrators provides trained arbitrators for major disputes. In many cases, the arbitrator will be someone who has expertise in the particular field involved in the dispute, but if the dispute involves a point of law the parties may decide to appoint a lawyer. If there is no agreement on whom or how to appoint, then, as a last resort the court can be asked to appoint an appropriate arbitrator.

Arbitration Act 1996 The actual procedure is left to the agreement of the parties in each case, so that there are many forms of hearing: Paper Hearing This is where the two sides put all the points they wish to raise into writing and submit this, along with any relevant documents, to the arbitrator. He will then read all the documents, and make his decision. Oral Hearing Once the arbitrator has all the documents, both parties will attend a hearing at which they make oral submissions to the arbitrator to support their case. The decision made by the arbitrator is called an award and is binding on the parties. It can even be enforced through the courts if necessary. The decision is usually final, though it can be challenged on the grounds of serious irregularity in the proceedings on a point of law.

ARBITRATION Activity Visit http://www.tas-cas.org/en/index.html to research the role of the Court of Arbitration for Sport. Use reputable news websites to research information surrounding the following disputes heard at the Court of Arbitration for Sport: - Luis Suarez biting ban - Russian Olympics doping ban. What was the role of Court of Arbitration for Sport, if any in these cases? How has the dispute been resolved? Research some further examples of occasions where the Court may have intervened to resolve a dispute in the world of sport.

ARBITRATION ADVANTAGES Evaluation DISADVANTAGES On a Post-It note, make a note of an advantage or disadvantage of arbitration and stick it on this table. A Padlet could be used for this for a more interactive, digital alternative. ADVANTAGES DISADVANTAGES

ARBITRATION ADVANTAGES DISADVANTAGES The parties can choose their own arbitrator, and can therefore decide whether the matter is best dealt with by a technical expert , a lawyer, or a professional arbitrator. An unexpected legal point may arise in the case which is not suitable for decision by a non-lawyer arbitrator. Questions of quality can be decided by an expert in the particular field, saving the expense of calling expert witnesses and the time that would be used in explaining all the technicalities to a judge. If a professional arbitrator is used, his fees may be expensive. The hearing time and place can be arranged to suit the parties. It will also be expensive if the parties opt for a formal hearing, with witnesses giving evidence and lawyers representing both sides.

ARBITRATION ADVANTAGES DISADVANTAGES The actual procedure is flexible and the parties can choose that which is more suited to the situation, resulting in a more informal and relaxed hearing that in court. The rights of appeal are limited. The matter is dealt with in private and there will be no publicity. The delays for commercial and international arbitration may be nearly as great as those in the courts if a professional arbitrator and lawyers are used. The dispute will be resolved more quickly that through a court hearing. Arbitration proceedings are usually much cheaper than going to court. The award is normally final and can be enforced through the courts.

NEGOTIATION MEDIATION ARBITRATION CONCILIATION Exam Practice For each form of ADR, write down the 5 most important things to include in an exam answer. When you are done, pass your answers to your partner for marking!! We will then discuss the most important. Also think about advantages and disadvantages of each form of ADR. NEGOTIATION MEDIATION ARBITRATION CONCILIATION