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

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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.  Each party would agree on a set time limit if deemed necessary to increase the pressure on both parties to settle in agreement  without dragging on which could cause high costs.  There are not set rules or guidelines for the process once it has commenced but usual fair practice would impend that the claimant first explains his or her position and the reason for the dispute.  The opposition party can then give their stance and any reasoning for the dispute.  Each party can then suggest a resolution and barter for an agreement suiting both parties.  Negotiation fundamentally allows both parties to get their story off their chests in a non-hostile environment in an effort to understand each others opinion.

        Mediation is similar to the above method of negotiation with the exception that it also involves a third person.  This person is completely neutral and is called the mediator.  The mediator will consult with both the parties privately at a place and time agreed by everyone.  He/she will take down all key points of both arguments and will attempt to seek ‘common ground’ between parties which the mediator will discuss conclusively with them together and on a agreed date.  The purpose of the mediator is to  give a basis to both parties from which to begin discussion to form a resolution.  The mediators purpose is not suggest an overall solution to the problem being discussed, but is to develop the areas of discussion and to make sure that the full story has been heard and understood by both sides.  The only way mediation can be successful is if both the parties are wanting an agreement to come out of the process.  This is because the mediator cannot at all force opinion or put pressure on the parties to make a decision; it is the actual parties who make the resolution and only they can implement it.

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        Conciliation is very similar to mediation in that it also involves a third person.  This person, called the conciliator is more active in the actual proposition of any resolution.  He or she will also like an mediator; interviewing each party separately and seeking a common ground from which a suitable resolution can be found which is positive to both parties.  Conciliation is an extremely favoured method of dispute resolution within the commercial and industrial sectors alike.  They favour it because it is quick, private and cheap.  Another more important advantage is that unlike a lengthy court case it encourages communication ...

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