Briefly explain the key differences between the three types of Alternative Dispute Resolution and explain why they are preferable to the ordinary civil courts.

Arbitration is governed by several Arbitration Acts which gradually streamlined the process and ensured its speed and cost effectiveness, making it a proper alternative to litigation.

Arbitration is very common in the commercial world, due to its confidential nature. In addition to this, arbitration is faster, less expensive and less formal than a resort to litigation. Arbitrations often occur because both parties have agreed in contract with one another to resolve any future dispute by means of arbitration. This is known as a 'Scot Avery Clause'.

However, it must be noted that arbitration can sometimes cost as much as litigation in some cases, depending on the qualifications of the professionals involved and the complexity of the matter being resolved.

Mediation is a less structured approach to dispute resolution, in which a mediator acts as a facilitator and guide rather than a decision maker in helping two parties in a dispute to craft an agreement between themselves. Although in mediation the mediator may in the same way as an arbitrator make suggestions for a resolution, such suggestions are only a guide and are not binding as they are in arbitration.

The advantage of mediation over litigation and even arbitration is that the parties come up with a resolution themselves, albeit with the help of an independent third party, and therefore are more motivated to keep to its provisions. However, the process is not legally binding upon either party and therefore not all lawyers are supportive of mediation.

Mediation, nevertheless, is so popular in some countries that the term 'mediation' has become synonymous with 'Alternative Dispute Resolution' and the process has widespread success in many matrimonial cases.

Not so many laws cover mediation as arbitration. The Family Law Act 1996, however, made provisions for pilot schemes in family mediation under which schemes divorcing couples must participate in a whole year of mediation before proceedings can commence.

Conciliation is where an independent third party - the conciliator - will offer up possible solutions to both parties and they decide between themselves which one to use. The conciliator, in direct contrast to mediation, will not usually meet both parties at the same time but will see each separately ('caucusing'). Furthermore, they do not act so much as a facilitator towards mutual agreement but more as a conciliator seeking concessions from one or both parties on behalf of the other party to the dispute. Another reason conciliation differs from mediation is that the decision, when committed to writing and signed by both parties, becomes a legally binding document under UK contract law.

Conciliation has been found to be most successful in industrial disputes or in employment proceedings such as cases of unfair dismissal. In such situations, the parties will seek the advice of an ACAS officer (the Advisory, Conciliatory and Arbitration Service) or another such individual. However, conciliation may not always be successful in resolving the dispute in which case the parties may have to resort to more formal proceedings.

There has been an historic resistance to ADR by both parties and their advocates. Recently, however, ADR has been much favoured by both the legal and by the general public. Some courts now require certain parties to resort to ADR of some form (usually mediation) before giving permission proceedings to begin.

The increase in popularity of ADR can be explained by the increased caseload of the civil courts, the lower expense of such alternatives to court proceedings, the higher level of confidentiality and the greater control the parties possess in choosing the person or persons to negotiate their dispute.

TMA (C) Rebecca Milburn Page 1