Exam February 2016, answers - ADR exam answer PDF

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ADR exam answer...

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Alternative Dispute Resolution (ADR) 1. Essay on ADR – advantages/disadvantages including work of scholars such as Fiss and Genn

What is ADR? A method of resolving disputes (contractual or otherwise) without recourse to traditional litigation (without going to court) Promoted since Woolf Report (make court proceedings quicker, cheaper, easier to understand) Halsey v Milton Keynes General NHS Trust – Lord Dyson – “All members of the legal profession who conduct litigation should now routinely consider with their clients whether the disputes are suitable for alternative dispute resolution.”

Types of ADR

1. Mediation Third party (mediator) facilitates the resolution process (may even suggest resolution – “mediator’s proposal”) but doesn’t impose resolution on parties (no top-down decision, parties create own agreement) “Method of conflict management in which conflicting parties gather to seek solutions to their problems, accompanied by a mediator who facilitates discussion and the flow of info, aiding in the process of reaching an agreement” – Bercovitch 2007 Bush & Folger (1994) ‘The Promise of Mediation’ – argues mediation can be transformative Advantages  

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Can have ‘win-win’ result Not aggressive – understanding one another’s position with no aggressing lawyers. Doesn’t result in the parties hating each other/not speaking/ending nastily – for sake of shared child, business environment, etc – reduces hostility, reduces ‘demonising’ of other party Speed – hours not months/years (a la court case) Cost – mediator charges fee, but quicker process = less money spent Privacy – court hearings public, mediation confidential. Notes destroyed post mediation. Control – more likely to produce mutually agreeable result that court case as no judge/jury

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Parties are amenable and understanding = High level of compliance with agreement Trained mediator is neutral facilitator, helps parties think ‘outside box’, thus broadening range of possible solutions

Disadvantages   

Doesn’t always result in settlement agreement – may still require court, thus mediation waste of time and money Relaxed environment may not get full truth out – mediators may lack tools of lawyers to get evidence/testimonies No strict rules/procedures to ensure fairness/equality to both parties.

2. Arbitration Formal method – ‘litigation without the wigs’ Decision (top-down) made by third party (arbitrator) on basis of written info Process is final and legally binding – limited grounds for appeal Often used for commercial disputes (high value cases) Governed by Arbitration Act 1996 Advantages   

Allows parties to choose own tribunal – can choose members with specialist expertise of dispute subject Faster than litigation in court Confidential

Disadvantages    

Most expensive ADR process Bias – if the arbitrator depends on the corporation for repeat business, there may be an inherent incentive to rule against the consumer or employee Limited avenues for appeal (only if evidence of bias/procedural irregularity) – erroneous decision not easily overturned Unlike court judgments, arbitration awards themselves are not directly enforceable. A party seeking to enforce an arbitration award must resort to judicial remedies, called an action to "confirm" an award.

3. Adjudication Adjudication is the legal process by which an arbiter or judge reviews evidence and argumentation including legal reasoning set forth by opposing parties or litigants to come to a decision which determines rights and obligations between the parties involved Used in construction contracts since 1976 – HGCRA 1996 intro adj as right for all parties to construction contracts Lantham Report 1994 recommended adjudication as a 1st instance resolution method Either party has right to give notice at any time of intention to refer disputes to adj Timetable – adj appointed within 7 days of notice, decision within 28 days of referral Adjudicator must act impartially Can act on own initiative to ascertain facts and the law related to the dispute Decision is binding until its final determination by litigation/arbitration/agreement Adjudicator immune from liability for his actions or omissions

Advantages Produces imposed, final decision that parties are obligated to respect Decisions are authoritative and based on precedent (principles of the law, established norms) Judges (adjudicators) highly qualified for the job Proper appeal process Disadvantages Prohibitively expensive Control removed from client/disputant and delegated to lawyer/court Courts often overbooked, caused delays before a case is heard Courts constrained by law to what solutions they can give (may not fully satisfy all issues)

Relevant cases • Bouygues v Dahl Jensen (2000) – Error in adjudicators decision stands even if the liquidation of one party mean that the referring party will not be able to recoup losses. • Glencot Development v Ben Barrett & Son (Contractors) Ltd (2001) – Negotiations broke down. Adjudicator made decision in Glencot’s favour – and potential bias. Barrett won

4. Conciliation Conciliator meets with parties both separately and together in attempt to resolve differences – parties rarely involved in face to face discussions They do this by lowering tensions, improving communications, interpreting issues, encouraging parties to explore potential solutions and assisting parties in finding a mutually acceptable outcome. Differs from arbitration in that conciliation process has no legal standing – conciliator has no authority to seek evidence or call witnesses, writes no decision, and makes no award Differs from mediation as in conciliation, parties are in need of restoring/repairing a relationship, either personal or business

Advantages Informality Non face to face aspect – beneficial when parties have acrimonious relationship Cost – cheaper than litigation Confidential No binding agreement – if unhappy, party can leave process with no obligations other than to pay costs already incurred from the process

Disadvantages No binding decision – if no agreement can be found, parties are left in same position as when started. No top-down decision Conciliator involvement – ability for conciliator to involve themselves in proceedings thru ‘active’ involvement can question unbiased nature of conciliator

5. Expert determination Form of dispute resolution invoked when there is not a formulated dispute in which the parties have defined positions that need to be subjected to arbitration, but rather both parties are in agreement that there is a need for an evaluation. Expert determination is a procedure by which the parties to a dispute appoint an independent and neutral expert to determine the dispute in private. Like arbitration, it allows trade secrets and other sensitive information to be kept out of the public domain. The expert will be a person with specialist or technical knowledge relevant to the dispute.[1]

General ADR Advantages – The rising popularity of ADR can be explained by the increasing caseload of traditional courts, the perception that ADR imposes fewer costs than litigation, a preference for confidentiality, and the desire of some parties to have greater control over the selection of the individual or individuals who will decide their dispute. Suitability for multi-party disputes

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Flexibility of procedure - the process is determined and controlled by the parties to the dispute Lower costs Less complexity ("less is more")

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Parties choice of neutral third party (and therefore expertise in area of dispute) to direct negotiations/adjudicate Likelihood and speed of settlements Practical solutions tailored to parties’ interests and needs (not rights and wants, as they may perceive them) Durability of agreements Confidentiality The preservation of relationships and the preservation of reputations

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Critics of ADR Owen Fiss – ‘Against Settlement’ – objects to settlement for securing the peace while not necessarily delivering justice and denying court opportunity to interpret law Dame Hazel Genn – value of public civil justice system being challenged by ADR Lord Neuberger – mediation no substitute for justice More formal versions (arbitration) almost like litigation Cost benefits exaggerated Evidence that lawyers use mediation as tactical weapon

Conclusions      

Places expertise and compromise over adversarial confrontation. Lessens the role of pure law and legal argument. Increases the awareness of evidence and record-keeping. Arguably can be an educative process for all involved – professionally and otherwise. But there remain concerns about Justice. Highly suited to commercial, family, and land disputes...