Alternative Dispute Resolution (ADR)

Assignment based around ADR

What is ADR?

• Any method for resolving a disagreement that is an alternative to the courts
• Encouraged by the governments and court inside and outside the UK
• Parties are obliged by UK law to use ADR to avoid ending up in court
• Courts can penalise parties who unnecessarily end up in court when they could have reasonably used ADR.

ADR is growing around the world

• Economic recession and increasing costs of dealing disputes in the courts has seen increasing demands for cheaper and quicker alternatives.
• Governments and judiciaries around the world are actively encouraging use of ADR.
• Tenancy agreements, building contracts and other commercial contracts now routinely include dispute resolution provisions, which enable parties to resolve their disputes privately, and without going to court.
• Industries

Alternative Dispute Resolution= ADR

• Arbitration
• Mediation
• Dispute Boards
• Expert determination
• Ombudsman
• Negotiation is the ODD ONE OUT (tactic where you find 2 parties discuss an answer and to get to a resolution) best cheapest and quickest one to ADR
• Independent Review etc.

Problem with courts:

1. -time
2. money
3. one or both parties still unhappy
4. relationship damage
5. reputations

ADR is in growing use around the world

• Economic recession and costs of resolving disputes
• Government and judicial encouragement
• Commercial imperative leading to innovation and adoption of new ways

Arbitration, a form of ADR it’s a way to resolve disputes outside the courts. The dispute is decided by an arbitrator who produces a decision called an arbitration award is legally…

• Form of ADR offers an alternative to the courts for resolving disagreements
• Regulated in UK by act of parliament, Arbitration act 1996 opsi.gov.uk – go to legislation UK Acts 1996
• A party cannot take the same disagreement to court once it has been arbitrated

UK Arbitration

• Used to resolve many types of commercial property disputes

(approx., 3000 rent review arbitrators appointed annually by RCIS

• Manage rural property disputes

Disputes under the agriculture holdings act 1986 & agriculture tenancies act 1995

• Provides resolution for construction disputes

Not so frequently used now as 28 day adjudication has been more popular since 1998 in the UK, but remains popular in non-UK jurisdiction E.g. UAE.

International Arbitration

Used internationally

International contracts such as FIDIC (federation of international

New York convention on Arbitration Awards

Local laws and regulations

Arbitrators Role

Act like a judge

Decision maker

Challenge

Powers

Evaluation of opinion

Jurisdiction

Awarding costs

Limits of the dispute

Immunity

Advantages of Arbitration

Faster than litigation in court

A time limit can be placed on the length of the process

Cost – cheaper and more flexible

Informal – more commercial and less formal than court

Confidentially – unlike court rulings, arbitration proceedings and arbitral awards are confidential.

Disadvantages

No appeals, the arbitration decision if final. Even if one party feels that the outcome was unfair, unjust or biased they cannot appeal it

Evidence – rules of evidence may prevent some evidence from being considered by a judge or a jury, but an arbitrator may consider that evidence, So an arbitrators decision…

Expert determination is described as a procedure by which the parties to a dispute appoint an independent and neutral expert to determine the dispute in private. Like arbitration, it allows trade secrets and other sensitive information to be kept out of the public domain. The expert is a person with specialist or technical knowledge relevant to the dispute. Their experience and professional knowledge are expected to help solve the dispute.

Expert determination

Provides cost efficient resolution for dispute and problems, confidential and private.

Controlled by parties so scope of jurisdiction and terms of reference come from contract with parties so is unable to award costs unless the contracts state so.

Knowledge and expertise?

No legal mechanism?

Right or wrong? ( see johns wood )

Mediation – is a dynamic, structured interactive process where an impartial third party assists disputing parties in resolving conflict through the use of specialised communication and negotiation techniques. All participants in mediation are encouraged to actively participate in the process.

Falls into 3 different methods

1. Stakeholder consultation
2. Facilitated (helps parties to find their own solution but does not impose his own solutions
3. Evaluative (mediator offers views on specific issues or overall positions

Why mediate?

• Quick and informal
• Economically viable
• Able to deal with issues which courts cannot
• Fair and transparent
• Able to maintain relationships
• Adaptable
• Able to deal with emotive issues
• Meditation process – typical steps
• Initial contact with the parties
• Private meetings with each party
• Further private meetings
• Joint meeting setting the agenda
• Exploration
• Settlement
• Follow up

 

What makes mediation successful

• Releases pressure off wired people
• Moves from entrenchments to forward planning
• Mediator acts as catalyst
• Safe forum to explore people’s needs
• Is flexible not rule bound
• Active listening
• Reality checking
• Gets innovative solutions
• Deals with emotive issues

ADR for the future

Early identification

Benefits of ADR

Quicker

Cheaper

Less formal

Private

Conflict avoidance in dispute resolution- involves carefully and properly planning with clarity the strategy for executing a project…

Why conflict avoidance?

Benefits:

• Helps parties to prevent and control disagreements through a bespoke contract
• Flexibility pay as you go
• Promotes ownership of issues in disagreements
• Encourage collaborative working
• Issues reviewed by independent panels of experts who make non-binding recommendations

 

More info at:

Rics.org/drs

Rics.org/guidance