Action before the civil courts

Is the cheapest and quickest way of resolving a dispute is to contact the person with whom the dispute is and communicate with them directly in an attempt to settle the disagreement. This can be done before lawyers; the courts or any other alternative methods of disputes get involved. If this does not work, solicitors may negotiate on behalf of their clients, the longer the negotiation between lawyers carries on the more it costs. Negotiation outside of the court may also lead to a settlement after as well as before a legal action has been placed. 

Arbitration

Is where a private process by which an independent person called an arbitrator resolves a dispute by making a legally binding decision. An arbitrator is often an expert in the particular field that is the subject of dispute. In some case the arbitrator may be a lawyer. By agreeing to arbitration parties are normally agreeing to let the arbitrator rather than a judge into a court of law and decide how the dispute should be resolved. The chartered institute of arbitrators (CIA) is the market leader in the provision of consumer disputes by arbitrators and other forms of ADR.

Sometimes arbitration is conducted on paper. In other words the parties put the points they wish to make in writing and send it off to the arbitrators without actually appearing at a hearing. Where an arbitrator hearing is held parties agree among themselves whether one arbitrator or several acting as a panel will hear the case where the evidence is given on oath or not and other procedural matters. Mediation With arbitration, the arbitrator acts in a similar way to a judge. Mediation on the other hand involves a mediator helping parties to reach a compromise without actually imposing a solution upon them.

The role of the mediator is to talk to both sides and act as a neutral go-between. The mediator trys to establish, where the two sides might agree, without offering an opinion to whom has the better case. It is not the role of a mediator to solve disputes but merely to help the parties involved to find a way of solving it. A more formal method of mediation in commercial disputes is a 'mini trial'. Both sides put their case to a panel consisting of a decision maker from the two sides and a neutral advisor.

Once the arguments have been heard the panel trys to reach a decision with the neutral advisor acting as a mediator if the other two panel members are unable to reach agreement. Mediation is very cost effective. Commercial disputes involving a million pounds can be settled within one day. As the delays in arbitration have grown, an increasing number of companies have turned to mediation. One advantage is that it is a relatively non-confrontational way to settle disputes compared to court action. 

Conciliation

Conciliation goes a step further than mediation because the mediator takes a more active role in suggesting grounds for compromise and the best option for reaching settlement. One of the functions of the advisory conciliation and arbitration service (ACAS) is to attempt to resolve disputes between trade unions and employers through conciliation. ACAS offers a range of ADR service is the field of disputes between employers and employees. Although funded by the department of trade and industry. ACAS is not a government department and is fully independent and impartial.

It employs around 700 staff, based in offices throughout the UK. B. ) Disadvantages of ADR:  Unequal bargaining power: This can be a particular problem in cases that are settled through mediation and conciliation. With both of these, it may be wrong to assume that a process involving formal informal negotiation will involve a fair exchange of views. In employment and divorce cases for example it may be that one side is able to dominate other by fair means or otherwise and get exactly what they want without giving very much away.

Such behaviour may represent a continuation of the pattern that they have exceeded in a relationship for some time. Proper legal representation and arms length dispute may be a better option for a weak party. Lack of legal expertise: Where a dispute involves difficult legal points and arbitrator or mediator is unlikely to have the same expertise as a judge (though some arbitrators are experienced lawyers. ) No system of precedent: It may not be easy to predict the outcome of a case decided through arbitration.

Arbitrators neither create nor are bounded by precedent. > Enforceability Much of the advantage of ADR is lost if the 'losing side' does not actually make compensation to enforce a decision. It then is necessary to take the matter before the courts. This involves exactly the kind of expense and delay ADR is designed to avoid. Court action may still be required With both mediation and conciliation it is possible that after a great deal no effort no agreement can be reached and these parties end up in court.

This is unusual however the Centre for effective dispute resolution (CEDR) for example, say that over 80% of the cases it is involved with are settled. Advantages of ADR:  Speed: Setting a case through ADR is usually much quicker than proceedings in courts. > Expertise: A specialist arbitrator is able to find a reasonable solution using expert knowledge of acceptance and normal practices within the trade or industry in question. A judge is far less likely to be able to draw on specialist knowledge in this way.

Privacy: The parties may well prefer to avoid the bad publicity and media attention that often comes with a court appearance. With ADR hearings or negotiations are conducted without the presence of the press of the public. Parties may remain on good terms: This particularly applies with mediation and conciliation. The aim is find a compromise solution that is acceptable to both parties. Court proceedings are likely to be more bruised and in the judge finding for one side or another, without regard to compromise.