Courts do not provide the only means of resolving disputes. What other existing methods provide alternatives? How satisfactory are they? Where, for one or more reasons, court action is not the best way of solving dispute, a wide range of alternative methods of dispute resolution known as ADR may be used. There are many reasons for why cases end up in alternative methods of dispute resolution rather than being solved through court hearings. Firstly the adversarial process, which is where the court divides both parties and they may end up as enemies even where they did not start out that way.
Also costs can be very high in a court case, for example in a business dispute the average cost of a court case is about 100,000 including lawyer's fees. In a court hearing, the rules of procedure lay down a fixed framework for the way in which problems are addressed. This may be inappropriate in areas, which are largely private concern to the parties involved. Another reason for why people choose alternative methods of dispute resolution is because of the fact that court hearing impose a solution on the parties, which since it does not involve their consent, may need to be enforced.
Additionally the majority of court hearings are public. This may be undesirable in some business disputes, where one or both of the parties may prefer not to make the public aware of their financial situation or business practices because of competition. The methods of alternative dispute resolution are; mediation, negotiation, arbitration, conciliation and tribunals. In mediation there is no judge but a mediator who is appointed to the role of the judge conducting the dispute.
The mediator is neutral and their job is to help the parties reach compromise. Mediation is private; unlike a court case there is no publicity. In certain cases mediators specialise in an area. Mediation could take place in neighbourhood disputes and business but will only work if both parties agree and co-operate.
The advantage of mediation is the obvious cost of difference, for example in a business dispute the average cost of mediation is between 1,500, however the cost of an equivalent case in court is about 100,000, including lawyer's fees. Also this method is less stressful and avoids the adversarial process.
There are, as all ways, some down sides to this method as well as if it doesn't work the parties will end up going to court, which means time is wasted, the cost is increased even more and there is more stress. Also it is not legally binding so there is no way to enforce it. Tribunals operate alongside the court system; they were mainly developed to deal with social rights in terms of arising from the development of the welfare state.
The main types of tribunals are; social security, rent immigration, employment and mental health. There are two types of arbitration; Trade association Arbitration and Commercial Arbitration, which come under Fair Trading Act 1973 and Arbitration Act 1996. Association of British Travel Agents (ABTA) is an organisation which most reliable travel agents will be registered to. Trade associations such as ABTA, offers a service to customers to deal with complaints and disputes. They can bring an alternative way of solving disputes other than going to court.
There are many advantages and disadvantages to this method as well, this is a cheaper, quicker and easier way of solving a dispute but the arbitrator may not be completely impartial, meaning that they may be involved in that industry. Also people are not aware of these sorts of arbitration, as they are not well advertised. Additionally in many small disputes the fee may be more than the cost of replacement. Commercial Arbitration is voluntary. The parties agree to go to arbitration at the outset, usually by a way of a term in a contract.
For example, if a firm of builders and architects were building a shopping centre, they will set a contract and say if there is a dispute they will go to arbitration rather than court. This is basically an agreement for the future. The parties can actually choose an arbitrator from either the Institute of Arbitrators or a Chartered surveyor. You agree to be bound by the decision. The advantages of commercial arbitration is that the parties may choose their own arbitrator, which may be a technical or legal expert and if the arbitrator is an expert it may save time and money as expert witnesses are not required.
Also the hearing, time and place can be arranged without disturbing the parties' normal routine. Arbitration is also less formal and more flexible than using the court. There is also no publicity and arbitration is less expensive, just like all the alternative methods of dispute resolution, than court. However professional arbitrators fees are higher ( 1000 upwards) and if the arbitrators is a technical expert they not be able to deal with legal points and vice versa. Also if the parties hire lawyers and call witnesses it then becomes more like a court case and expensive.
Negotiation is an informal method of resolving disputes and it's where the parties or their solicitors attempt to compromise, to settle the dispute. This would often be part of the pre-action protocol to try and settle the dispute. The advantages are that it is easier, quicker, cheaper and informal as well as being less stressful. On the other hand this can be a waste of time if the parties do not negotiate. Also injustice may occur as one party may be better of economically and hire better lawyers, which will outweigh the opposition.
The last method of alternative dispute resolution is Conciliation. This is similar to mediation but the conciliator takes a more suggestive role, in suggesting possible ways of resolving the dispute and also in advising the parties if there is no case. For example, in an unfair dismissal. The conciliation is done by ACAS, which are the Advisory Conciliation and Arbitration Service. The dispute in this case is between the employer and employee who claim on unfair dismissal.
The employee makes a claim to an employment tribunal and when the employer defends that claim Acas appoints conciliation officer. Their role is to try and get the parties to reach an agreement. The conciliation officer may advise either party if there is no case, and if the employee has no case they will be advised to withdraw, and if they refuse and go to the tribunal but loose in the end they will have to pay costs. If the conciliator reaches a compromise it may be made into an order as if the tribunal had decided it.
Conciliation is much cheaper, informal, quicker and less stressful than a court hearing. This method can also be used in family cases. After analysing these facts I have come to a conclusion that alternative dispute resolution is a quick, cheap and a less stressful way of sorting out disputes but I think alternative dispute resolution should only be used in small disputes and that larger disputes should be settled out in the courts where everyone believes that the right verdict will be given.