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Legal dispute methods - Alternative Dispute Resolution
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DescriptionLegal dispute methods - Alternative Dispute Resolution
Until the 1990’s the popular method used for litigants to resolve legal disputes was a public trial in court. Lengthy delays and soaring costs made people seek alternative methods. The Centre for Dispute Resolution (CEDR) was formed in 1991 and together with Confederation of British Industry (CBI) had a large influence in promoting the use of what is known as ADR – Alternative Dispute Resolution.
ADR is defined as any method of resolving an issue prone to normal legal process by agreement rather than by imposed binding solution. The most common forms of ADR include negotiation, mediation, conciliation, arbitration and tribunal. These methods are governed by several acts, The Arbitration Act 1996, The Tribunals and Inquiries Act 1958 and The Industrial Tribunals Act 1996.
Each method of ADR has its own process and merit which is briefly outlined below.
The first most basic measure would be negotiation. Negotiation would typically be both parties, directly or through a representative, corresponding to each other trying to negotiate a settlement. Negotiations can also take place throughout court proceedings.
Similar to negotiation is mediation. In mediation the mediator meets both parties, listens to each side’s arguments and attempts to help reach an agreement between the parties.
A third method of ADR is conciliation. This is similar to mediation, where a third party, a conciliator, is utilized to attempt to resolve the parties differences by suggesting a settlement. It also differs to mediation with the fact that the two parties do not meet in person but rather the conciliator acts as the go between. Another form of ADR is arbitration. This involves a similar setup to a court, as an arbitrator is appointed by the parties to decide on the judgment, using information provided by each party.
Lastly are tribunals, where a panel of one legally qualified person and two non qualified people decide the resolution on the dispute.
ADR has received a lot of admiration and praise from both the legal department and the public. It has introduced methods of resolving legal disputes without much hassle. The Lord Chancellor’s Department 1999 has praised ADR as being ‘practical’. However the ADR is not without its critics. The primary argument for ADR is that it is quicker and cheaper than courtroom litigation. ADR is considered cheap, with some methods, like negotiation, could be completely free, however ADR sceptics note that arbitration can still entail significant costs, associated with the preparation of each party’s evidence, which are prepared by qualified individuals with expertise in the particular areas.
The ADR process is also considered quick and particularly straight forward. One can be involved in mediation for just a short time, some times a matter of days compared to a court trial where lengthy delays are part of the process. But not all forms of ADR are hassle free. In fact some methods, particularly arbitration and tribunals, involve delays and various stages before settlement.
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