Most of the people who faced with a dispute they want to settle it as quickly, as amicably and as cheaply as they possibly can. But on the other hand our legal system is adversarial, slow, expensive and unfriendly. That's why court system is not always the best way of resolving disputes. A range of alternative methods of dispute resolution can be used. Informal Negotiation Anyone who has a dispute with another person, one of the simplest way to resolve it is informal negotiation between themselves.
The high number of civil cases settled out of court is example of this. If the parties cannot come to the agreement they may take a step of instructing solicitors. Advantages The advantages of informal negotiation are that it is the easiest and quickest way of resolving dispute. It is private and parties will have a choice that where and when a negotiation can take place. Disadvantages The disadvantages of informal negotiation are that it could be expensive if both parties have a solicitors and sometime it can be difficult to enforce the decision. Mediation
This is where a neutral mediator helps the parties to reach the compromise solution. The role of mediator is to consult with each party and see how much common ground there is between them. He/she will explore the position with each party, looking at there needs and carrying offer to and fro, while keeping confidentiality. The mediator will not usually tell the parties his/her own views of the merits of the dispute; it is a part of his job to act as a "facilitator" `so that an agreement is reached by the parties. However a mediator can be asked for an opinion of the merits.
The mediation can also take different forms for example Formalised Settlement Conference and Mediation Service and the parties can choose the exact method they want. The important point in mediation is that the parties are in control and they make decision. Advantages The advantages of mediation are that it is private, cheap and quick way of resolving disputes. People come to mediation because they want not because they have been ordered to. Even if mediation session did not settle the dispute, the parties to mediation were more likely to settle without going to court than in non – mediated cases.
Disadvantages The disadvantages of mediation is that there is no legal aid and an unexpected legal point may arise in the case which is not suitable for non – lawyer mediator. Some mediator took too much control and bullied the parties and the weaker party may feel pressured to accept a settlement. Conciliation This has similarities to mediation in that a neutral third party helps to resolve the dispute, but the difference is that the conciliator will usually play a more active role. He will be expected to suggest grounds for compromise and the possible basis for a settlement.
In industrial disputes Advisory Conciliation and Arbitration Service ACAS can give an impartial opinion on legal point. Advantages The advantages of conciliation are same as mediation, though the conciliator and ACAS can help more for compromise and resolving dispute. Disadvantages The disadvantages of conciliator are same as mediation. Arbitration Arbitration is where the parties agree to submit their claims to private arbitration. Arbitration was governed by the Arbitration Act 19961. The object of arbitration is to obtain the fair resolution of disputes by an impartial tribunal without necessary delay or expense.
The precise way in which the arbitration is carried out is left entirely to the party agreement. The agreement to go to arbitration can be made by parties at any time. It can be before a dispute arises or when the dispute becomes apparent. The decision made by arbitrator is called an award and is binding on the parties it can even be enforced through the court if necessary. The decision is usually final though it can be challenged in the courts on the ground of serious irregularity in proceedings on point of law. Advantages
The advantages of arbitration are that the parties have the freedom to made their own arbitration agreement and decide exactly how formal and informal they wish to be. The hearing time and place can be arranged to suit parties. The award is normally final and can be enforced through the courts. Disadvantages The disadvantages of arbitration are that the rights of appeal are limited. It can be expensive if both parties have lawyers. The delays may be great if a professional arbitrator and lawyers are used. Ombudsmen
The role of ombudsmen is to investigate complaints by individuals who claim to have suffered injustice as a result of maladministration by government departments and local authorities. The kind of complaints dealt with includes general inattention or delay, rudeness, bias, discrimination, inconsistency, misleading or inaccurate information, failure to follow or properly follow administrative rules or procedures. The ombudsmen will not consider complaints if alternative remedies exist through court or administrative tribunals, unless it is unreasonable to expect the complaint to use these.
The ombudsmen cannot enforce its own findings ombudsman can only make recommendations. There are different types of ombudsmen e. g. Legal Services ombudsmen, Health service ombudsman, European ombudsman and Prison ombudsmen etc. Advantages The advantages of ombudsmen are that the ombudsmen can help ordinary people and can also draw attention to problem through media. The services of ombudsmen are free and available for all. Disadvantages The disadvantages of ombudsmen are that it has no power to change or questioning a decision, even if a decision itself seems unfair or wrong.
The complaints usually take year to deal with. Lots of people are not aware about ombudsmen. Small Claims Court The reason why Small claims court being included here in ADR is because it is very different from other court hearings. Small claims court was introduced in 19732, with the aim of providing a cheap, simple mechanism for resolving small-scale consumer disputes. The limit has been raised several times. Since 1999 it has i?? 50003. The use of lawyer is discouraged but it is possible to have a lawyer. The party can also have Lay representative to help to put their case.
Small claims court used to be heard in private but under the Woolf reforms they are now heard in an ordinary court. Advantages The advantages of Small claim court are that the procedure is quicker than other courts and the cost of proceedings is low especially for claims under i?? 1000 and if party lose they don't have to pay lawyer's cost of the other party. The district judge should also help the parties to explain their case. Disadvantages The disadvantages of small claims courts are that there can be delays where the opposing party is not ready and day and time of hearings are not always convenient for those who are working.
There is no legal funding for small claims cases. Even if you win your case it doesn't mean that you will get your money from the defendant. Tribunals Tribunal were in existence as long as ago in 17994, but the present system has really grown up since Second World War. There are over 60 different types of tribunals. The system of tribunal has been built up in various areas. So, some cases cannot start in a court but have to start in a tribunal e. g. Immigration cases. Most tribunal consist of a legally trained chairperson, and two lay people who have some particular expertise in the relevant subject area e. g.doctors in Medical Appeal Tribunal. The lay can take an active part in decision – making.
Tribunals are regarded as inferior to the ordinary courts, even though they are largely independent from them in their own jurisdiction. There is no uniform appeals procedure from tribunals; most do allow some right of appeal. Aside from judicial review procedure the council on tribunals oversees the decisions and working of tribunal. The council has no power to overrule any decision made by tribunal. Advantages The advantages of tribunals are that in tribunals' applicant are encouraged to represent themselves and not to use lawyers.
Tribunal cases come to court fairly, quickly and many are dealt with within a day. Tribunals do not charge fees, and each party usually pay their own costs, rather than a loser having to pay all. Tribunal have expertise in the relevant subject area so they are able to build up a depth of knowledge of that area that judges in ordinary courts could not hope to achieve. Disadvantages The disadvantages of tribunals are that the tribunals have tendency to behave too much like courts. There are too many types of tribunals with overlapping jurisdiction.
Citizens are not always aware of the existence of tribunals. Because of huge variety of tribunal and the many decision it is not always possible for council to control tribunal. Conclusion Eventually I would say that the ADR is a better way of resolving a dispute than court system. There are quite common disadvantages in ADR like there is no legal aid and decisions are hard to enforce on parties. I suggest that consideration should be given to avoid such disadvantages. On the other hand I would say that the advantages are more than disadvantages.