Private arbitration is governed by the Arbitration Act 1996, which states
“The object of arbitration is to obtain to fair resolution of disputes by an impartial tribunal without unnecessary delay or expense”.
Arbitration is a completely voluntary alternative to court, and the parties are free to agree between themselves exactly how the arbitration will be carried out – whether it will be a paper arbitration or hearing, and the time and date of the arbitration if it is a hearing.
Unless the parties have agreed before hand, the decision, which is called an award, is final and can be enforced by the courts if necessary. It can be challenged in the courts if necessary, on the grounds of serious irregularity in the proceedings or a point of law.
There are disadvantages to arbitration though, as professional arbitrators can be very expensive, and the rights if appeal are limited once the final decision has been made, Advantages though are that arbitration is usually much cheaper, quicker and more private than going through the courts.
Mediation
Mediation is similar to arbitration in that there is a neutral third party involved. In this form of alternative dispute resolution however, the role of the third party (mediator) is exactly what the name suggests. They will talk to each party and try to discover how much shared ground there is, and carry offers between the parties. The mediator does not usually give their own views on the offers of the parties, as their job is to remain neutral and help the parties reach an agreement, not to suggest their own ideas and thoughts. As the mediator talks to each side, hearing their needs and talking about their position, all the information they discuss with each party must remain confidential.
The decision reached by the parties does not need to be a strictly legal one, it is usually based on common sense and what is the best compromise for both of the parties involved. Another advantage is that mediation is a much less formal way to settle disputes, and as a result it can be possible for companies involved in disputes to carry on with business afterwards.
However, mediation will only work if both parties are willing to co-operate and make it work.
Conciliation
This is a very similar form of ADR to mediation. The main difference is that the neutral third party – the conciliator – plays a more active role, suggesting ways for the parties to compromise, unlike the mediator who only carries offers from one party to another.
The Advisory Conciliation and Advisory Service (ACAS) can help with legal points in an industrial dispute, giving an impartial opinion on the positions of the parties.
Conciliation is quicker and cheaper than going through the court system to settle a dispute, but it will not always work and the parties may have to carry on with legal action if it does fail.
Negotiation
Negotiation is different to other alternative dispute resolutions, because it does not immediately involve a third party. The two sides negotiate directly with each other to try and settle the dispute. If this does not work to begin with, a solicitor can be asked to become involved and will try to negotiate an agreement. In this way, settlement often happens just before a civil trial begins, or in some cases even after the trial has started.
Negotiation is extremely cheap (unless a solicitor becomes involved, in which cases costs can mount up quickly if the negotiations go on for a long time), is quicker than court, and is much more private. As with conciliation and mediation however, negotiation does not always work and parties may need to carry on with legal action to settle their dispute.
Another alternative to courts are tribunals. They are not the same as alternative dispute resolutions, as the parties involved cannot go to court – they must use a tribunal, unlike ADR where parties can choose to go to court if they are unhappy with the outcome.
The aim of tribunals is to give people a chance to enforce their entitlement to certain social rights. In these cases, the parties cannot go to court to settle and have no other option but a tribunal.
Main types of tribunals are: -
- Social security tribunals
- Rent tribunals
- Immigration tribunals
- Mental Health Review tribunals
- Employment tribunals
The majority of tribunals have a panel of three members – a legally qualified chairman (either a lawyer or a judge), and two lay members. These lay members must have experience in the area of expertise involved in the tribunal.
The system is designed to prevent the use of lawyers. Individuals are encouraged to bring their own cases to the tribunal. There are no formal rules of evidence or procedure in general, and legal aid is not available for most tribunals. Exceptions to this rule are the Mental Health Review tribunal, the employment tribunal and the lands tribunal.
The courts in two ways control tribunals –
- There is an appeal system against the decisions of some tribunals, for example the employment tribunal.
- The court makes sure the decision has been made lawfully, and the High Court has the power to overturn a decision.
Tribunals are useful for preventing the courts from becoming overloaded with cases. They are dealt with more quickly and informally, and the panel is composed of a mix of legal expertise and expertise in the field concerned. However, there is a lower success rate if lawyers are not used, and the role of some chairmen has been criticized for not being helpful enough to an unrepresented party. Also, as legal aid is not available for most tribunals, one party may be at a disadvantage if they cannot afford the legal help that the other side can pay for.
Bibliography
The English Legal System (2nd Edition), Jacqueline Martin
www.arbitrationdispute.org