When it comes to disputes, often people are misinformed or unaware that there are multiple options in regard to reaching a settlement / agreement.
This resource, Alternative Dispute Resolution (ADR), explains all of the different methods of ADR that can be utilised.
Dispute Resolution encompasses a range of options for the effective resolution of disputes rather than resorting to litigation, which can often prove a very expensive, time-consuming and complex exercise. It promotes the amicable settlement of disputes and is actively encouraged not just by the European Commission but by the British judiciary, due to the features of it and the benefits that can be derived from it. Due to it being a consensual process, despite its recognised benefits in a lot of cases, courts cannot force people into ADR, however, they can incur additional costs if they refuse to take part in a dispute resolution process.
One of the main forms of ADR in the UK is Mediation. The most commonly used form of mediation is facilitative mediation, where the mediator assists parties involved in conflict by facilitating discussion between the two and establishing a private and constructive environment in which these discussions can take place. Mediation may support participants in generating options that would not necessarily be a feasible option in a court of law, due to the rigidity often seen within the legal system. The mediator consistently seeks the views of the parties involved throughout the process. The mediator however doesn’t have any power to actually impose their own individual views or judgements, nor can they provide advice. One of the biggest problems faced in establishing mediation between conflicted parties is persuading both to actively engage in the process, so ensuring that they both understand the nature of mediation and the fact that it is less time-consuming and in turn far less expensive than litigation is paramount.
Mediation is used in a range of disputes including workplace, civil and for divorce or separation. In divorce and separation cases mediation is required in most circumstances before parties can even apply to a court to have their case heard.
The mediation process in separation and divorce cases
The party who initiates mediation would first attend a Mediation Information Assessment Meeting (MIAM). In this meeting the mediator will explore the issues for mediation, the party’s thoughts and feelings and would also assess the case to see whether it was suitable for mediation. The mediator would then write out to party b. Once they have attended their MIAM and both parties are willing to attend a joint session, the mediator would arrange a suitable date and time for parties to attend. In instances where parties do not want or cannot be in the same room as each other there is the option for shuttle mediation. This is where the parties would be in separate rooms and the mediator would go from room to room. To find out more about Family Mediation please click here.
The mediation process of civil cases is the same as family which is explained above. In workplace cases it is usually the employer who would initiate mediation and then both parties would agree to attend. The mediator would then provide the parties with the details of the mediation and both the first initial meeting and the joint meeting would take place on one day.
In comparison to family cases, solicitors and advocates can be present in civil and workplace cases, they can also have authority to settle outside of the participants involved. Workplace and Civil mediations can be finalized in one day, whereas family mediation can take place over several months and it is usually only the separating couple who would attend the mediation.
In family, civil and workplace mediation, once an agreement has been reached, the mediator will produce a document that will include all of the agreements. In workplace and civil cases this is known as a Statement of Outcome and in family cases this is known as a Memorandum of Understanding or a Parenting Plan. In some instances, this documentation can be incorporated into a court order.
Another form of ADR is Conciliation. This process is very similar to mediation in that it is voluntary, confidential and that the conciliator, like the mediator, is a neutral third party. During the conciliation, the conciliator will help parties to discuss issues and reach an agreement. The Conciliator will provide advice and options to parties, but will not make or decide the final agreement, this is down to the parties.
Early Neutral Evaluation
Early Neutral Evaluation seeks a non-binding opinion (usually a judge) as to the potential outcomes of a trial if the dispute were to go to court. When this ‘opinion’ is given then the parties involved can work towards a mutually agreeable outcome or settlement based upon the evaluation given. Unlike mediation, a third party is often not present in order to facilitate the process but purely based upon the potential outcome of trial. This form of ADR is most often used in commercial and technological disputes.
Expert Determination, Judicial Appraisal and Expert Appraisal
A more informal process of dispute resolution is Expert Determination where an expert in the field in which the dispute has arisen, gives a decision on a what is usually a technical issue. This decision is final and binding. In a similar way Judicial Appraisal can be used where former judges and barristers can be asked to give advice from a legal perspective, once both parties have made their representations. This is not a binding decision but can be if both of the parties involved agree to make it so. Likewise, Expert Appraisal employs an independent expert to listen to both parties and give their expert views on what they have heard.
Adjudication, Med-Arb and Final Offer Arbitration
Adjudication has been established for a long time as a method of ADR, particularly in the construction industry, as within certain construction contracts there is a statutory right to ask for adjudication. The adjudicator who is independent of both parties involved, provides decisions on contract disputes. The decision made by the adjudicator is binding and enforceable however, if one of the parties is unhappy with the adjudicators decision then it can go to Arbitration or Litigation for a final determination. Med-Arb uses a combination of both mediation and possible arbitration. The parties agree to mediate but, on the proviso, that if no agreement can be reached then the matter will be automatically referred to arbitration. The arbitrator can be the same person undertaking the mediation as they will already be aware of the facts surrounding the case, which could save time and money in the long run. With Final Offer Arbitration, the settlement offers are submitted to an independent third party who then chooses which of the parties offers to accept.
Executive Tribunals and Dispute Review Boards
Mini or Executive-Tribunals hear each of the parties present their cases to a panel of people that have the authority to settle the dispute. The panel usually consists of a senior executive from each of the parties and an independent third person. This panel will then attempt a settlement of the issues raised with the independent person acting as the mediator between the other two. Whilst the whole process is private, confidential and without prejudice, the parties involved can request that the determination is to be made a binding one and the independent person can also provide opinions as to the potential outcome of the case at a trial, regardless. Similarly, Dispute Review Boards work in a similar way but for construction projects. A board is appointed at the beginning of a construction project and consists of a person selected by each party and an independent third person appointed by other board members. Over the duration of the project, the board visit the project and deals with disputes that have arisen. Their decisions are binding but can be challenged within a specified time frame, through either arbitration or litigation. These boards can help prevent disputes and are particularly useful on large scale construction projects.
Many people use negotiation skills on a day to day basis without realizing it, whether it is in a personal or professional capacity. Negotiation is the back and forth conversation between two or more parties who have different needs. The parties try to find common ground between them in order to resolve the dispute at hand.
Negotiation is commonly used to reach agreements for contracts, leases and conditions of sale.
There are two types of negotiation, Competitive negotiation and problem-solving negotiation. Competitive negotiation, as said in the name, is seen by parties as a competition, that one party must win and the other party must lose. It is based upon one party intimidating the other party to back down and agree to the opposing agreement.
Problem solving/integrative negotiation, however, is based upon the fact that there is already common ground between parties, and this is utilised for them both to take steps towards their common goals and interests. When both parties reach an agreement, it is seen as a win win rather than a win lose.
Collaborative law is an alternative process to court litigation, which is used in divorce and separation cases. Collaborative law is based on principled negotiations. In collaborative law, both solicitors on the opposing sides are present in multiple meetings, other professionals can also attend the meetings including but not limited to financial advisors or accountants. Both parties and their solicitors discuss the issues around divorce and separation, which can include child arrangements and finances.
All parties involved in collaborative law agree that they will not go to court, which is confirmed in an agreement. Similarly, to problem solving negotiation, the aim of collaborative law is to create a win win for all parties involved.
Restorative justice is a type of dispute resolution, which brings both the perpetrator of the crime and the victim of the crime into meetings to discuss the outcome of the crime, both of their feelings and their experiences. In the meetings there will be a trained facilitator present to guide the conversation between the victim and the offender.
The ultimate aim of restorative justice is to repair the damage that was caused by the crime, which usually happens by offenders taking responsibility for the crime that they committed and, in some instances, offer an apology to the victim.
Restorative Justice is completely voluntary in that both the victim and the offender must be willing to attend.
To find out more about mediation please contact us on 01905 21717 or email firstname.lastname@example.org.