Describe the different methods of Alternative Dispute resolution available to deal with civil cases?
Disputes Resolution has become a major aid in helping resolves disputes between different parties, primary between private companies, but also between individuals. The courts has aimed to make Dispute Resolution as fair as possible and has placed regulations on all of the keys methods of Dispute Resolution. In this question I will outline the key methods of dispute resolution which are, Mediation, Arbitration & Conciliation and how these perform there tasks.
Mediation is based around helping to reach a dispute compromise. This is commonly done through A Mediation service. They will gather both sides of the parties into a room to discuss the issue and see if it can be resolved without taking the dispute to a court. first of all both parties much agree to attend, unlike court where the defendant or attacker both must attend or lose the case. This also means that both parties can back out the negotiations at any time.
There are lots of organisation today such as the Cheltenham Mediation service that perform Mediation services. This type of Mediation will usually be carried out like a mini-trial where each party will present its side of the case to the executives of the parties with a neutral adviser and attempt to try to come to an agreement. With a system like this means, that the companies do not have to be forced into to any agreements they disagree with. because it is outside of the courts. The advantage of this is the Mediation service will hold no bias towards either company allowing the parties to reach the best solution for both groups. If no agreement is met then the neutral advisor will be a mediator between the two parties. The reasons this is preferred to the courts is that they do not need to to follow as strict guidelines in the court allowing the companies to reach a sensible agreement. Conciliation is basically Mediation but the mediator will look for a resolution to the dispute with more actively and will often suggest grounds for a means to resolve the dispute.
Arbitration unlike Mediation relies much more upon the Arbitrator who essentially sides up both sides of the situation to reach a fair compromise for both parties in the dispute. This is usually done when both parties disagree with something but wish not to send the case to the courts for a multitude of reasons such as not wishing to follow the exact wording of the law. Arbitration is usually agreed in a contract when business begins. The section of the contract they will usually state the name arbitration or a method of selection for an arbitrator. This is called a Scott and Avery Clause essentially stating that if a dispute were to arise then both parties will have their dispute resolved through arbitration. These agreements to arbitrate are governed by. the Arbitration Act 1996 where the law states the court will usually not take the case if a Scott and Avery Clause has been made prior and both parties had agree to an Arbitration. If a method of selection or an arbitrator is not selected the courts can select one.
There are two types of arbitration one is written. This method involves both parties writing all of their argument into text then submitting this to the Arbitrator who will decided. The second type is the like the first where both parties send documents to their case but a hearing is then heard where both parties will also make oral submissions. In this hearing also witnesses can be called up to submit statements. The results of these hearings is enforced by the courts so decisions have to be met however these out comes can be appealed.
In conlusion we can see that there are many different methods of dealing with disputes
B) Discuss the advantages and disadvantages of using arbitration rather than using the courts?
Not using the courts holds a massive advantage over using the courts for a multitude of reasons. The main reasons are disputes are allowed to be resolved without following the law as thoroughly which can often lead to not having the best result for both parties in the dispute. They often hold the most benefits for large companies because it allows a lot of flexibility for both parties and allowed each party to leave negotiations at any point if they feel the alternative dispute resolution is not working. However with this type dispute resolution this means that after spending large amounts of money on fees for the mediation, for talks to break down can lead to large amounts of money being wasted. This is because there is zero guarantee that disputes will be resolved in these types of hearings, however 80% of mediations and conciliations are successful
This whole entire process is completely voluntary from both parties and requires the both parties to co-operate between each other. This means that if one of the parties disagrees strongly on something it can bring the whole negotiation process to a halt. Along side of the Mediation fees, payouts are usually much less than in court which can deter companies from taking this method of dispute resolution. One of the main issues with Mediation today is with large companies up against smaller buisnesses or individuals is that these weaker parties will not have the correct support needed and may be bullied into making undesired decisions.
Mediation on a smaller scale can also benefit individuals well also. Without the hostile effects that come with cases in the court this type of resolution can help leave relationships in tact after the hearing. This is because unlike a court case both parties can leave the mediation feeling they have achieved what they both set out for. This especially beneficial for neighbour disputes. This type of resolution is also much less formal making the whole atmosphere much less relaxed. With a much more relaxed environment this would make tensions after the hearing much less likely. Another reason this benefits individuals is because it encourages work between the parties to discuss with each other the issue which should mostly lower hostilities.
In conclusion one of the key advantages of dispute resolution is that the process allows individuals and companies to co-operate with much greater ease and ease tensions between individuals. The major disadvantages of this process how ever is the much lower fees in comparison to a larger court payout
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