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Describe how civil disputes can be resolved without going to court (this does not include tribunals).

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Introduction

Alternative Dispute Resolution Essay By Chris Armstrong Describe how civil disputes can be resolved without going to court (this does not include tribunals) Resolution in the courts is not the only method of dispute resolution. If the parties can resolve their own differences then there would be no need to use the court system which would benefit all parties being the claimant, defence and the civil justice service. Although the court service is a good and fair way of dealing with civil disputes in might not be the ideal way in getting the best result for both the parties. There are four main ways of alternative dispute resolution (ADR) they are; Negotiation, Mediation, Conciliation and Arbitration (also known as a Formal Settlement Conference or mini-trial). Negotiation is a method whereby the two parties try to resolve their differences by sitting down together in the hope of reaching an agreement. By using this method it is cheap, private and quick. The parties can also use their solicitor or another legal representative if they fail in the negotiation process this method maybe more ideal because it will not incorporate any bad feelings or emotion which might prevent any resolution being agreed. When a dispute has being 'settled out of court' it has been resolved by negotiation and negotiation precedes the majority of cases due to be heard in the county court and also sometimes tribunals. Negotiations are organised by the two parties or by their legal representatives on their agreed terms. Most negotiations take place in an neutral environment which could be a booked boardroom or even an office depending on the size of the parties. ...read more.

Middle

Private Arbitration is where an neutral arbitrator is picked the same as in a judicial situation except he makes conclusions for himself. This is sometimes called a 'paper' arbitration where the arbitrator makes a decision after reading the documents of the case or they may have a hearing more like a court case in which people give evidence. Both judicial and private arbitration methods are strongly endorsed by companies and the courts. The Arbitration Act 1996 aims to promote commercial arbitration, by providing a clear framework for its use. It sets out the powers of the parties to shape the process according to their needs, and provides that they must do everything necessary to allow the arbitration to proceed properly and without delay. It also spells out the powers of arbitrators which include limiting the costs to be recoverable by either party and making orders which are equivalent to High Court injunctions if the parties agree. The Arbitration Act introduced in 1996 attempted to improve the process of arbitration because the law had become too complex. It has significant importance in respect that it gives the parties more control on the process as long as they are in agreement. This includes how they plan to pick the arbitrators, how many of them will be present, if there are more than two will one act as an umpire. They also can agree on what powers the arbitrators will have and to what extent of jurisdiction they will have to implement their final decision (bearing in mind that they can have the power paralleled by the high court). In the possible situation that one of the parties fails to appoint an arbitrator under section 18 sub.sec.1 of the Arbitration Act ...read more.

Conclusion

ADR is much more suitable because it can take place within at least two weeks with an agreed arbitrator/arbitrators and can be settled with a resolution that is suited to both parties without one becoming seen as the loser as in a court case. This is why most commercial contracts contain the Scott v Avery clause stopping other companies bound by this term going straight to court. These are the key advantages of the different ADR processes collectively: Cost; many procedures try to work without any need for legal representation and even those that do involve lawyers maybe quicker an therefore cheaper than going to court. However, concerns have been expressed that a bigger role for alternative dispute mechanisms, as suggested by Lord Woolf, could simply be a way of solving disputes cheaply, offering a form of second class justice. Accessibility; alternative methods tend to be more informal than court procedures, without complicated rules of evidence. Speed; the delays in the civil court system are well known, and waiting for a caseto come to court may, especially in commercial cases, add considerably to the overall cost, and adversely affect business. Expertise; those who run alternative methods of dispute resolution schemes often have specialist knowledge of relevant areas, which can promote a fairer as well as quicker settlement. Conciliation of the parties; most alternative methods of dispute resolution aim to avoid irrevocably dividing the parties, so enabling business or family relationships to be maintained. Overall the advantages weigh out the disadvantage of the costs involved in setting up a strong case involving lawyers, witnesses, company statements etc. It also lessens the queue's of the civil courts and lessens stress on both parties because of the lack of formality. ...read more.

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