Tittle

Pages

1.

Introduction

2.

Types of Alternative Dispute Resolution

3.

Advantages of Alternative Dispute Resolution

10

4.

Disadvantages of Alternative Dispute Resolution

12

5.

Analysis of contribution of Alternative Dispute

Resolution

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6.

Conclusion

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7.

Bibliography

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Introduction:
Civil justice system allows the injured person to hold the
others accountable for their actions. If the court finds that person
is liable, that party usually has to 'show the money' and pay
damages to the injured party.1 However, it will be costly to use
the court proceedings to resolve the problem between the
parties who came into dispute, especially in terms of money and
time, as the court proceeding can take longer to end. Besides, it
will caused the individuals who involve in the dispute be

1 Available at http://study.com/academy/lesson/what-is-civil-justice-definitionprocess-rules.html accessed 20 March 2015

traumatic and the outcome or result for the case may not always
satisfy the dispute parties. An additional problem by using the
courts is that there is nothing to stop or prevent the details of the
cases being published in both local and national newspapers.2
So, more and more people and business seeking other method to
resolve their dispute rather than litigation. Alternative dispute
resolution (ADR), is the method of resolving the dispute between
the parties outside the court.
Start from 1990, there is a trend to use ADR. This can be
seen in the Woolf Reform, one of the recommendation of Lord
Woolf is encourage people who came into dispute to use ADR
both in pre-action protocol as well as after the commencement of
civil proceedings.3 Pre-action protocol is a list of things which
should be done by the claimant before a case is start4 Thus, the
Civil Procedure Rules allow the judges to stay the court
proceedings, which means to stop the proceedings temporarily in
order to give a chance to the parties to try to use ADR.5
2 Jacqueline Martin, The English Legal System (6th edn Hooder education,
London 2010)122
3 Lord Woolf in his Access to justice report
4 Jacqueline Martin,Rebecca Huxley-Binns, Unlocking English Legal System (4th edn
Hooder education,Croydon 2014)125

5 Jacqueline Martin, The English Legal System (6th edn Hooder education,
London 2010)122
3

Besides UK, ADR began to spread around the world and

first is the common-law country, which are Canada, Australia and
New-Zealand. ADR is an approach that is faster, less-stressful
and also cheaper than using the court proceedings. There are
variety kind of ADR can be used. It encompasses negotiation,
mediation, conciliation and arbitration.6

Types And Contribution of Alternative Dispute Resolution:

Employment Cases
Employment cases is a case which can be consider has long used
of ADR. In settling down the employment cases, ADR is used in the
shape of Advisory Conciliation and Arbitration Service (ACAS). ACAS
6 Available at
http://siteresources.worldbank.org/INTECA/Resources/15322_ADRG_Web.pdf
accessed 20 March 2015
4

will then contact the two parties who came into dispute and offer in
order to attempt to resolve their dispute without the need for the
matter to go to a longer procedure that is tribunal. One of the
advantage by using ACAS is they will provide a specially trained
officers who have a great deal of experience in the field of employment
disputes. However, there is also a criticism that the amount paid in
such settlement will be less than the amount would have been
awarded by a tribunal.7

Negotiation
Negotiation, one of ADR which is the most popular method
attempted first to resolve a dispute. This is a voluntary process which
7 Jacqueline Martin, The English Legal System (6th edn Hooder education,
London 2010)122
5

can be an option for anyone who have a dispute with another person to
meet and negotiate directly with them to reach a compromise. In the
process of negotiation, both of the parties will be remained in the
control of outcome, no result imposed on the parties and they are
allowed to walk away from the process at any time.8
Negotiation can be conducted with or without the intervention or
assistance of a third party, like solicitor. A negotiator will focus on
solving the problem and satisfy the interest of both parties without
determining right or wrong. The parties must conclude the actual
terms of the agreement that they had agreed based on their desired.9
If the parties unable to come to come to an agreement, they can take
the matter further, instructing solicitor. The solicitors will try to
negotiate a settlement. In fact, the lawyers for the parties will always
continue to negotiate on behalf of their clients. This is one of the
reason that the high number of cases are settled out of court.

Mediation
8 Available at http://www.frostbrowntodd.com/resources-01-22-20071.html
accessed 18 March 2015
9 Available at http://www.justice.gc.ca/eng/rp-pr/csj-sjc/dprs-sprd/res/drrgmrrc/03.html accessed 18 March 2015
6

Mediation means there is a neutral person, mediator who are

mutually accepted by the parties act as a go-between to help them to
reach a voluntary settlement of case, during the confidential or face-toface meeting. There are three types of disputes settled by mediation,
that is family, workplace A typical mediation begins with the parties
have a meeting in the same room or open forum. Each of them giving
a short presentation to the mediator. This is to give an overview of the
facts of the partys case to the mediator and the mediator will start to
discuss the issue with the parties.10 The mediator is responsible to
consult with each party in the dispute and see how much of the
common ground there is between them. The mediator will also explore
the position with each party, looking at their needs and carrying offers
to and fro, while keeping confidentially. A mediator will not tell the
parties his or her own view as it is a part of job to act as a facilitator, so
that an agreement can be reached by the parties, but, he can be asked
for an opinion of the merits .In this case, the mediation becomes more
of an evolution exercise, which aims at resolve the dispute.11
There is a more formal method of mediation which involves a
mini trial where each party presents their case to a panel composed
of a decision making executive from each party. Once all the
10 Available at http://www.frostbrowntodd.com/resources-01-22-20071.html
accessed 19 March 2015
11 Jacqueline Martin, The English Legal System (6th edn Hooder education,
London 2010)122
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submission have been made, with the help of neutral advisor, the
executive will evaluate the two sides position and try to come to a
compromise. If the executives cannot agree with it, the neutral advisor
will act as a mediator between them. This procedure can narrow down
the issue even if the whole matter is not resolved so that if the case go
to court, it do not need to take a long time to end the case.
Besides that, there are a free mediation services which are
resolving the smaller matters like the dispute between the neighbors
arising from the matters of noise, or boundary-fence disputes which
run by trained volunteers. They will not take sides or made judgment
on right or wrong of an issue. They will visit the party who has made
the complaint and hear their side of matter. If that party agree, ask to
visit the other person and hear their point of view.

Conciliation
Conciliation is similar to the mediation in that involving the
dispute resolution that involves the negotiation between the dispute
parties, assisted by a conciliator who is an independent unbiased third
party. The main difference is that the party to a dispute are rarely
involve face-to-face discussion and the conciliator will usually play a
more active role than negotiation and mediation. Once the parties
agree to use the conciliator, they will usually meet with the conciliator
separately to resolve the dispute. The conciliator will be expected to
suggest grounds for compromise and the possible basis for a
settlement.12 The conciliator will improve the communication between
the parties and interpreting the issues arise from the dispute. The
parties are not bind by the decision of the conciliator, but when the
parties are come into an agreement, they often have a contract drawn
up by the parties conciliator, in order to make the agreement binding.13

12 Jacqueline Martin, The English Legal System (6th edn Hooder education,
London 2010)125
13 Jacqueline Martin, The English Legal System (6th edn Hooder education,
London 2010)125
9

Arbitration
Arbitration covers two different processes. Firstly, following a
process of agreed upon by the parties, using a minimum court
intervention to resolve their problems,. The second meaning of
arbitration is, the parties agreed to submit their claims to private
arbitrator.
Private arbitration is governed by Arbitration Act 1996 s(1), (a) the
object of arbitration is to obtain the fair resolution of disputes by an
impartial tribunal without unnecessary delay or expense14, and (b)
the parties should be free to agree how their disputes are resolved,
subject only to such safeguard as are necessary in the public
interest.15 This means that arbitration is the parties voluntary to
submit their dispute to a judgment of some person other than a judge.
The parties can go to arbitration anytime. The parties can include a
clause (Scott v Avery clause), where the parties agree in their original
contract that when there is a dispute arising between them, they will

14 Arbitration Act 1996, s (1)(a)

15 Arbitration Act 1996, s (1)(b)
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have a dispute settled by arbitration. Where this clause include in their

contract, the court will refuse to deal with any dispute, the matter
must resolve by arbitration as they agreed.
Besides, Section 15 of Arbitration Act 1996 states that the
parties are free to choose the number of the arbitrators. If the parties
cannot agree on the numbers, the Acts provides that only one
arbitrator can appoint.

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There is an Institute of Arbitrator which provide trained

arbitrators for major disputes. The arbitrators will be someone who has
expertise in particular field involved in the case. If the disputes
involves a point of the law, the parties may decide to appoint a lawyer.
Awards is the decision made by arbitrator. It will be bound to the
parties and even can be enforced by the courts.

16 Arbitration Act 1996, s.15

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Advantages of ADR
All the ADR have the similar advantages. Firstly, ADR are more flexible
compare to the court proceeding. This can be seen in negotiation,
conciliation and mediation. The parties are not only free to end the
process any time, it can adapt to meet the partys needs, for example,
they can choose the time, location and the people who are involve in
the process of resolve their dispute. They also can shape the process of
resolve the dispute resolution based on their needs and benefits.
Although in arbitration, the parties are bound by the decision, but the
actual procedure is flexible, the parties can also choose their own
arbitrator and make their own arbitration agreement, therefore can
decide whether the matter is best dealt with by a professional
arbitrator.17

17 Available at http://www.albrightstoddard.com/blog/bid/223519/THEADVANTAGES-AND-DISADVANTAGES-OF-ADR accessed 20 March 2015

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The second advantage is, ADR is relatively cheaper and faster compare
to the court proceedings. The parties who are using court proceeding
to resolve their dispute will have to pay a higher cost as it included the
court fees and lawyer fees. It also take longer time to end a case as
there may delay. In contrast, ADR do not have a rigid processes, and do
not have to pay the court fees, so resolve the dispute by using ADR will
be cheaper and quicker. A dispute can be resolved in matter of months
or even weeks, by using ADR. Especially in negotiation, the parties
dont have to pay any fee if they did not instruct a lawyer.18
Besides, ADR provide a private and confidential process and
settlement. ADR allow the parties to choose the person who involved in
the process of ADR. So there are no publicity on the process of ADR,
the dispute resolution and the results are keep private and confidential.
In shortly, ADR will not be conducted in an open courtroom or result in
published reasons for judgment.
Furthermore, ADR provide an informal procedure for the parties
to resolve their dispute. Unlike the court proceeding, the procedure of
ADR are more relax and the parties can present their own case to the
neutral third party not only the facts but also express their feelings and
what they wish to do it in the process to reach an agreement. The
parties can also choose a more convenient place rather than the court.
18 Available at http://www.facebook.com/l.php?u=http%3A%2F
%2Fwww.lawmentor.co.uk%2Fresources%2Fessays%2Fthe-advantages-anddisadvantages-ADR%2F&h=fAQERXWjm accessed 20 March 2015
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Under ADR, the parties are remain in full control of the process at
any settlement agreed. If there is no settlement is reached, the parties
may abandon mediation or negotiation process and start or continue
with any court proceedings. ADR can be used at any time either at the
commenced of the dispute or during the court process.

Disadvantages of ADR
Despite the advantages, the alternative dispute resolution also bring
some detriment. With the exception of arbitration, there is no
guarantee solution in all the ADR methods. If the parties unable to
reach a compromise solution in the process of ADR, they are necessary
to go to court after fail to attempt at ADR. In such situation, the
additional cost have to pay and the parties have to spend more time in
court proceedings. The money, time and effort invest in the process of
ADR is wasted and all the proceedings have to start again.
Next, the disadvantages of negotiation are the party may be of
unequal power and the weaker party will be placed at a disadvantage.
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This means that, if one party is timid and the other is loud and
aggressive, the timid person runs the risk of losing some of what is
legally owed to him. The agreements value is diminished where a
party with an interest in a matter is excluded or inadequately represent
in the negotiation.
There is some form of ADR, for example mediation, where the
parties negotiate with one another directly and come to agreement
without advised or input by the ADR practitioner on the merits or
fairness of the agreement, may not be appropriate if the party is not
able to represent, their own interest, effectively, for example, because
the history of violence or other source of power imbalance or
vulnerability.19
Besides, another disadvantage is the willingness of compromise. The
use of ADR dependant upon the willingness of the individuals to
compromise and to this extent it is arguable that the parties are more
likely to settle for less whereas once they have embarked upon court
proceedings their expectation may be higher. It could be that one of
the parties does not accept there will a problem and is not prepared to
compromise.20
19 Available at
http://www.legalanswers.sl.nsw.gov.au/guides/law_handbook/pdf/Ch20_disput
e_resolution.pdf accessed 20 March 2015
20 Available at http://www.lawmentor.co.uk/resources/essays/the-advantagesand-disadvantages-ADR/ accessed 20 March 2015
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Analysis of the contribution of ADR in the civil justice system

After the 1995 Interim Report which encourage the use of ADR, it
is more directive in the Final Report of the using of ADR which warns
that, the court will encourage the use of ADR at case management,
conferences and pre-trial reviews, and will take into account whether
the parties have unreasonably refused to try ADR or behaved
unreasonably in the course of ADR. ADR was encouraged to use as it
can saving scarce of judicial resources. The Civil Procedure Rules was
given an expression that the public should try ADR rather than
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litigation. The court have given the authority to order the parties to try
to resolve their dispute using ADR. The judge also have the authority to
deprive the legal cost of the party if the party have behaved
unreasonably during the litigation. The effect of the rules is not to
provide a direct incentives for the parties to resolve their dispute by
using ADR, but to impose the financial penalty on the party who have
unreasonable refused to use ADR.21
Although there is not stated that using the ADR to resolve their
dispute is compulsory before and also after the issue of proceedings,
the inclusion in the Civil Procedure rules that the judges authority to
direct the parties who are in the dispute to use ADR and the courts
discretion to impose a cost penalty on those who have the
unreasonable behavior during the course of litigation, has created a
situation that the parties can only use court proceedings to settle their
dispute if there have no more suitable way of dealing the dispute.

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By encouraging the use of ADR, it can reduce the case which

have to be consider by the court. The court can spend more time in the
other cases or a more serious case which need to be consider. Thus,
the case do not need to delay or drag for a long time which will caused
the cost of the court proceedings. Besides, in some cases, judges may
21 Available at http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?
article=1392&context=yjlh accessed 21 March 2015
22 Available at http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?
article=1392&context=yjlh accessed 21 March 2015
17

not have the necessary technical expertise or knowledge required, but

ADR like mediation or arbitration provide the trained mediator or
arbitrator which has expertise in the particular fields involved in the
dispute. They may give a more satisfied decision to the parties
compare to the judges.

Conclusion
In my opinion, based on the statement above, ADR shall be used by
the parties who are come into a dispute. This is because it is the
easiest and simplest way to resolve the dispute. It also can save cost
and time as, by using ADR the parties do not have to pay for the court
fee and other extra fees which have to pay in the court proceedings.
There is no strict rule in ADR, so the parties can use their desirable

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process to resolve the dispute. Since ADR is an informal method to

settle down the dispute, the parties can resolve their dispute in a more
relax and comfortable situation. Besides, if there is any undesirable
process or decision is made, the party are allow to leave the process of
ADR any time.
As a conclusion, there is no single answer as to whether the
court proceedings or ADR should be used as both of them have
advantages and disadvantages. If the case is not suitable to be
resolved by using ADR, then the court proceedings shall be used.
However, if the cost of using the court proceedings is much more
higher than the amount of the parties claim in the dispute, then ADR
shall be used.

Bibliography
Books :
Martin, Jacqueline. The English Legal System. 6th ed. London: Hooder
Education, 2010. Print.
19

Martin, Jacqueline, and Rebecca Huxley-Binns. Unlocking English Legal

Syatem. 4th ed. Croydon: Hooder Education, 2014. Print.
Electronic Sources :
Mackie, Carl. 'Alternative Dispute Resolution Guidelines'. N.p., 2011.
Web. 18 Mar. 2015.
Frostbrowntodd.com,. 'Alternative Dispute Resolution Techniques
Resolving Disputes Without Going To War: Frost Brown Todd Law
Firm'. N.p., 2015. Web. 18 Mar. 2015.
Justice.gc.ca,. 'Negotiation - Dispute Prevention And Resolution
Services'. N.p., 2015. Web. 18 Mar. 2015.
Albrightstoddard.com,. 'THE ADVANTAGES AND DISADVANTAGES OF
ADR'. N.p., 2015. Web. 20 Mar. 2015.
Lawmentor.co.uk,. 'Lawmentor.Co.Uk - Resources - The Advantages And
Disadvantages Of Using Alternative Dispute Resolution'. N.p., 2015.
Web. 20 Mar. 2015.
Study.com,. 'What Is Civil Justice? - Definition, Process & Rules |
Study.Com'. N.p., 2015. Web. 20 Mar. 2015.
Genn, Hazel. 'What Is Civil Justice For? Reform, ADR, And Access To
Justice'. Digitalcommons.law.yale.edu. N.p., 2012. Web. 21 Mar. 2015.
Tables of statutes

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Arbitration Act 1966, s.1

Arbitration Act 1966, s.15

21