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Alternative Dispute Resolution (ADR) is a collective term used for methods of solving a legal dispute without using the traditional method of going to court. Until recently if you had a legal problem you would have to go to court to get it resolved. However going to court can be expensive and time consuming therefore ADR is an alternative to the traditional method of litigation. In Scotland there are four forms of ADR currently in use: negotiation, mediation, conciliation and arbitration.
Negotiation is an everyday part of life and if you have a legal problem, negotiation is usually a good first step to take in order to solve it without going to court.
Negotiation involves both parties to a dispute communicating with each other and exchanging information in order to come to an agreement.
The main benefit of negotiation is that it allows a bilateral flow of information which allows each party to learn more and more about the other. As a result each parties goals can be identified and you can work together in order to come to an agreement that suits you both. However a lot of the time, successful negotiation depends on the “type of parties”. For example if your view is to seek a settlement that maximises your own gain at the other parties expense, negotiation will not be successful. However if you aim to maintain a relationship after settlement then negotiation will be more successful.
You can employ a solicitor to negotiate on your behalf but negotiation can also be undertaken by yourself so a solicitor is not a necessity in order to negotiate.
If you wish to undertake negotiation without a solicitor, you start communicating with the party you are in dispute with.
If you undertake on negotiation by yourself, it does not cost anything. But you may wish to employ a solicitor whose fees you would need to pay. Your solicitors fees may be paid for by Legal Aid advice and assistance.
Mediation is a popular form of ADR in Scotland. It is another voluntary form of ADR which involves parties in dispute turning to a neutral third party who will aim to help them resolve it. It is sometimes called facilitated negotiation. The mediator has no authority to decide on the outcome however they try to facilitate communication. Although there is a third party involved, it is you and the party you are in dispute with who will sort out the dispute and come to an agreement, not the mediator.
The mediation process involves sessions with the party you are in dispute with and a mediator. You will both be asked to tell your version of the dispute to the mediator who will then summarise the main issues in dispute. Mediation is based on successful communication so the next step would be the mediator to encourage communication between parties and explore the matters in dispute. This process should encourage parties to change perspectives and identify with each other how the disagreement is having an effect on each other. The mediator will encourage both parties to come to a fair agreement that suits everyone involved. After doing so, each party will be given a copy of the agreement and the mediator will explain each party’s role in the resolution of the dispute.
Its main advantages are similar to other forms of ADR such as it will be cheaper than litigation and much speedier than a decision that has to go through court. There are also advantages that are specific to mediation such as the remedy you can be given can be creative as mediation is not just limited to legal remedies so an agreement can be formed which is specific to your needs. Secondly, if you take a dispute to court it is rare for the court to make your relationship with the other party better whereas with mediation, relationships have a good chance of being preserved due to both parties agreeing to a suitable agreement. This proves to be a huge advantage for you if you are in dispute with someone who you need to work with in future for example a neighbour or co-worker. .Similarly mediation is confidential therefore you do not have to withhold any information that may be unfavourable if the dispute does end up in court. A mediator can be called to give evidence in court however the courts would be very reluctant to do this in a bid to protect the value of mediation and its users.
People want to resolve disputes so that they can move on with their lives but when a judge makes an order there is always the risk that a party may not follow it because it is against their interests. However research into mediation pilots in Sheriff Courts around Scotland found that 90% of mediated agreements were implemented compared with 67% of judgements held by courts . This is because the advantages of mediation mentioned above enable parties to have control, which mean both parties are more likely to stick with the agreement because they both choose it. The three most common types of dispute that are dealt with in mediation are discussed individually bellow.
The main disadvantage of mediation is that you may not end up reaching a settlement agreement so the dispute will ultimately end up in court. This may be because parties cannot stand to be in the same room as each other and communication has no chance of being successful. Similarly if one party is timid and the other aggressive, the timid party may not be awarded what is legally his due to mediation being focused on compromise.
Mediation is frequently used in family disputes such as separation and divorce. The focus is usually on financial issues or on child custody issues. Within these contexts going to court may make the situation more confrontational which is something that will not help resolve the dispute any easier. If there are children involved, mediation enables the parents or guardians to decide on an outcome that best suits all of your family needs rather than handing the decision over to a judge. Also with financial disputes in divorce or separation actions, an insight into the perspective of others may prove very useful as issues you have not thought about can be communicated.
Mediation is suitable for many different workplace conflicts ranging from personality clashes between employees to employee suspension. It may not be useful in areas such as criminal accusations within the workplace or where an employee has expressed they want a formal investigation in to the dispute such as discrimination complaints.
Successful mediation in the workplace can also benefit an employer as research has shown that mediation benefits in the workplace avoid the costs of defending actions in an employment tribunal. Similarly in case studies by ACAS, the number of formal grievances raised in the workplace will be reduced as more and more disputes are settled by mediation before they reach that stage.
Community mediation is used in a wide number of disputes including neighbourly disputes, homelessness mediation and social housing disputes. Over 9 out of 10 community mediation sessions end in an agreement . Neighbourly disputes including common issues such as noise issues or antisocial behaviour disputes. Mediation can help resolve these disputes by enabling all parties coming together and exploring the different options that can be used to resolve the disagreement.
In order to undertake mediation you do not need a solicitor and can contact a mediation service at any point in order to settle your dispute however if you would prefer to have your solicitor present during mediation you can. Similarly your solicitor could recommend mediators to use that specialise in your type of dispute. If you want to apply for legal aid to cover the costs of mediation, this can only be done through a solicitor which will be discussed below.
There are many different organisations that specialise in providing high quality mediation and they all have independent prices. If your dispute is complicated it may require several sessions of mediation which will cost more than a less difficult dispute only requiring one session. The cost of mediation is usually shared by the parties in dispute. Legal Aid can be awarded for mediation claims and there is no restriction on what type of dispute legal aid will be awarded to. Your solicitor will apply for legal aid to cover the costs of mediation on your behalf and the Scottish Legal Aid Bored will look at the merits of your case and your financial position and may grant financial aid towards mediation sessions.
The Scottish Mediation Network is a large organisation dedicated to mediation and provides a public database of mediators in Scotland on behalf of the Scottish Government. There are also several independent mediators so it may be best to research the services that different mediators offer.
Conciliation is another form of ADR which is similar to mediation as it involves a third party that helps resolve the dispute. However the role of the conciliator is different as he takes a more active role discussing the legal problem and may recommend the best ways to resolve it.
The conciliator will communicate with both parties and determine if a remedy to their dispute can be found. The conciliator will then try to explain the legal issues involved in the dispute and analyse the different remedies that exist to solve the dispute. They may identify the advantages and disadvantages of options or encourage the adopted of a specific alternative. The conciliators role is to pro-actively advise rather than merely assist however they cannot impose any decision.
From 6th April 2014, conciliation will be offered to any person who is making a claim to the Employment Tribunal. Conciliators at ACAS will be able to discuss with you with the advantages and disadvantages of your case and attempt to resolve the dispute with your employer without having to go through the expensive and stressful process of an Employment Tribunal.
Conciliation is similar to mediation as the aim of the process is to find a mutually beneficial agreement rather than one party being successful and the other unsuccessful. Therefore the advantages discussed in relation to mediation apply here too such as conciliation is a way resolving dispute quicker and cheaper than going to court.
The conciliator takes an active role in resolving the dispute and can suggest methods to resolve it. Some parties may prefer the conciliator to have a less active role thus mediation or negotiation may be a preferable form of ADR for them. Similarly a disadvantage is that at the end of conciliation there is no legally binding agreement produced therefore you may end up having to use another form of ADR or take the dispute to litigation in order to get a legally binding agreement.
A solicitor is not needed because the conciliator takes on the role of the advisor for both parties and aims to give advice on a solution that will benefit both sides. However if parties feel more comfortable having their solicitor present this may be possible.
If your dispute is employment related, the conciliation service that ACAS offers is completely free service. Otherwise the cost of conciliation depends on the conciliators individual prices for their service.
Contacting ACAS will enable a conciliator will be appointed to you. Otherwise there are many independent conciliators available to settle your dispute who can be found online.
Arbitration is a more formal type of ADR where your dispute is submitted to a private judge called an arbitrator who makes a decision which is final and legally binding. It is increasingly common for contracts to have an arbitration agreement clause within them that states any disputes will be settled by arbitration instead of litigation.
At the arbitration hearing, you and the other party present your version of the dispute to the arbitrator and can produce witnesses or evidence that will support your version of the facts. The length of time that the hearing takes depends on the complexity of the dispute and the number of witnesses that are to be examined. You may then present closing speeches to the arbitrator who must make a decision based on the hearing.
Arbitration is completely confidential whereas decisions made in court are public and are published online. Moreover if the other party does breach this confidentiality then you will be able to bring an action against them for this. Another reason many choose arbitration over going to court is that both parties select who the arbitrator is going to be. This can be advantageous because a judge in court is an expert on the law but may not have real life experience in the area that the dispute is in.
However this form of ADR can be linked with the courts as the arbitrator can obtain a legal opinion from the Court of Session. Moreover, although the arbitrators’ decision is legally binding, there are some limited appeal options after an arbitrator has made a decision. These include errors of law, errors in jurisdiction of the arbitrator and if there has been a serious irregularity.
Scotland has recently introduced the Arbitration (Scotland) Act 2010 which aims to provide a structured framework to the procedure of arbitration. As a result of this Act, the awards arbitrators can give are less flexible and arbitration has become more formal. However there are two main advantages that still exist: speed and money. A case that goes to court can take several years to finally have a concrete decision. Yet arbitration cases can be resolved within months. This enables costs to be kept down as the process is not stretched out over a long period of time. This can be hugely beneficial as the dispute may be preventing you from your usual business activities or be on a family dispute that has to be solved immediately.
Arbitration a type of ADR that bares most similarities with litigation as the process involves presenting your case, presenting evidence and persuading the arbitrator that your argument is stronger than the other party’s. As a result it is a fairly formal process and a solicitor may be advisable in order to help you through the process of arbitration. However it is by no means necessary to have a solicitor and you can represent yourself at an arbitration hearing.
The cost of arbitration depends on several factors including the complexity of your dispute. Similarly the cost of hiring an arbitrator for a hearing may be expensive depending on the person’s rates they charge. Similarly if you do opt for a solicitor to aid the arbitration process, you will have to pay the solicitor fees on top of the arbitration fees. Legal Aid may be available to help cover the costs of your solicitor.
Scotland has a Charted Institute of Arbitrators who will be able to assist you in finding an arbitrator who will be suited to your dispute. http://www.ciarb.org/scotland/arbitration/
The types of ADR that have been discussed are applicable in the rest of the UK. The main differences would be the funding available through Legal Aid as England and Wales procedure differ from Scotland. The funding available is always changing therefore you should check https://www.gov.uk/check-legal-aid in order to check if your dispute is covered by Legal Aid. It is currently available in England and Wales for arbitration and mediation. The free conciliation service offered by ACAS is also applicable in England and Wales.
The other difference is the organisations who offer ADR. For mediation in the UK there is a government website that provides mediators which can be found at http://www.civilmediation.justice.gov.uk/. For arbitration and conciliation the same advice applies to the whole of the UK with regards to finding an appropriate arbitrator or conciliator.
Nothing in this guide is intended to constitute legal advice and you are strongly advised to seek independent advice on matters that affect you.