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Alternative Dispute Resolution Essay

1889 words - 8 pages

Alternative Dispute Resolution

There are various ways of settling disputes without using the civil
courts, these are knows as Alternative Dispute Resolution, or ADR
which are used mainly in construction, family, commercial and
employment issues. There are 3 main types of ADR: conciliation,
mediation and arbitration, this essay will explore how they work and
what is involved in each process.

Mediation

A mediator, a neutral third person is appointed to help both parties
reach an agreement, which they will both find acceptable, already we
can see an advantage over court hearings because in court hearing only
one person can win fully, whereas in mediation both parties gain, or
lose less than they would in court. The mediator will try to see
similarities between the wills of each of the parties and use this to
encourage an agreement both the parties will like. In mediation
however, the parties are not controlled, the mediator has no real
power; the parties themselves must make the decision, though advice is
given and accepted freely.

There is a more formal side of mediation known as a Formalised
Settlement Conference. This is sometimes called a 'mini trial', in
which a panel consisting of an executive decision maker from either
side of the case, and a small neutral party which will look at the
position of each side and try to make a settlement.

Mediation is commonly used in commercial cases, with a Centre for
dispute resolution set up in 1991 in which businesses pay a normal fee
of £1000 for a mediator, as oppose to a potential £100,000 for
litigation, however there are downsides, there are still several
cases, around 20%, which are taken to courts because the parties will
simply not reach a settlement

Conciliation

In conciliation, as in mediation, a neutral third party attempts to
help settle the dispute, however as oppose to mediation the
conciliator takes a much more active role, making more decisions and
making a lot more suggestions in the way of making an agreed
settlement however conciliation is being regarded as an unused form of
mediation, except in employment cases;

In employment cases an organisation known as ACAS, or advisory
conciliation and arbitration service. A claim form is filled at an
employment tribunal and a copy goes to ACAS. ACAS will then contact
parties and attempt to resolve the dispute without direct contact, in
a hearing etc. This suggests that employees are under direct pressure
to settle however which is not a good thing.

Arbitration

Arbitration is the voluntary submission by the parties of their
dispute to some other person who isn't a judge. In arbitration there
are two different courses, in the first instance the courts will use
an informal procedure to hear cases, such as commercial cases in the
Queens Bench...

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