Alternative Dispute Resolution Law & Lawyers

Alternative Dispute Resolution (Also known as ADR) provides a voluntary alternative to the accepted practice of using the courts to settle civil disputes. The principle forms of ADR are adjudication, arbitration, conciliation and mediation. The best known and most commonly used forms of ADR in Australia are arbitration and mediation but adjudication is rapidly becoming established as a valued method of settling disputes quickly, fairly and cheaply.

It has become popular in some quarters, in particular lawyers and mediation service providers, to regard conciliation, negotiation and mediation alone as ADR. For these people a negotiated settlement is an alternative to having a dispute brought to an end by a third party such as an adjudicator, an arbitrator or a judge. This narrow definition ignores the significance of the voluntary aspect of private dispute settlement and the role that is played in all forms of ADR processed by experts and professionals outside the legal profession.

Should you require legal help or legal representation regarding any aspect of alternative dispute resolution, then please complete your free legal enquiry form.

Civil Disputes : These are disputes between private individuals and or organisations in respect of differences about the parties' respective legal rights and interests. Some legal rights are inherent, such as personal safety, ownership of property, personal integrity and reputation whilst other rights arise out of agreements. The difference or dispute is likely to centre around a failure by one person to perform legal duties owed to another which result in harm to the legal interests of that other person.

The principal categories of civil dispute involve claims founded in the law of contract, the law of tort which is concerned in particular with accidents and professional negligence, breaches of trust and the redistribution of shared property following the break up of relationships. Insurance, the construction and maritime industries and employers are the most common users of ADR processes.

Where ADR is not applicable : ADR is not available for criminal cases which are dealt with by and on behalf of the State before the Criminal Courts. Public Law disputes between individuals and the State, for example a complaint that an application for planning permission has not been dealt with properly by a planning and development licensing authority, are normally dealt with by specialist decision making bodies such as administrative tribunals which whilst distinct from the courts remain part of the State Judicial Machinery. Often the decision making body may be called an adjudicator or an arbitrator but since the decision making process is not voluntary, despite the similarity in name, the process is not part ADR. However, where the organs of state engage in the same type of activities as ordinary people and organisations, such as driving vehicles and business agreements, resultant disputes are civil and can be disposed of by either the civil courts or ADR.

Should you require legal help or legal representation regarding any aspect of alternative dispute resolution, then please complete your free legal enquiry form.

The main types of alternative dispute resolution are as follows:

Ombudsmen

Ombudsmen investigate and resolve complaints about public and private organisations. They also encourage good practice in the way complaints are handled by organisations and government bodies. The majority of recognised ombudsman schemes are set up by statute; others are voluntary non-statutory schemes set up on the initiative of the service sectors concerned. For example, services provided by insurance companies, banks and building societies are all covered by the Financial Ombudsman Service (FOS).

Conciliation

Conciliation involves an impartial third party helping the people in dispute to resolve their problem. The parties are free to agree to the resolution or not. In consumer disputes, conciliation is the first stage in the arbitration process and the conciliator is usually a member of the trade association.

Should you wish to be legally represented at a conciliation, then please complete your free legal enquiry form to be put in contact with a lawyer who is ready, willing and able to represent you at a conciliation.

Mediation

Mediation involves an independent third party helping disputing parties to resolve their dispute. The disputants, not the mediator, decide the terms of the agreement. The mediator has an important role, however, in 'reality testing' any agreement, ie in checking carefully that the parties are able to do what they agree to do.

Should you wish to be legally represented at a mediation, then please complete your free legal enquiry form to be put in contact with a lawyer who is ready, willing and able to represent you at a mediation.

Mediation is now widely recognised in the UK and Europe as the most popular form of alternative dispute resolution as it offers solutions beyond those that a court could ordinarily impose. It is increasingly used in commercial, personal injury and clinical negligence cases.

Family mediation helps those involved in family breakdown to communicate better with one another and reach their own decisions about children, property and finance.

Arbitration

In arbitration an independent, impartial third party hears both sides in a dispute and makes a decision to resolve it. In most cases the arbitrator's decision is legally binding on both sides, so it is not possible to go to court if you are unhappy with the decision.

Arbitration is in many ways an alternative form of court with procedural rules which govern issues such as disclosure of documents and evidence. But arbitration is private rather than public. Hearings are less formal than court hearings, and some forms of arbitration do not involve hearings but are decided on the basis of documents only.

Should you wish to be legally represented at a arbitration, then please complete your free legal enquiry form to be put in contact with a lawyer who is ready, willing and able to represent you at a arbitration.

Adjudication

Adjudication involves an independent third party considering the claims of both sides and making a decision. The adjudicator is usually an expert in the subject matter in dispute. Adjudicators are not bound by the rules of litigation or arbitration. Their decisions are often interim ones, ie they can be finalised using arbitration or another process. Adjudication decisions are usually binding on both parties by prior agreement.

In relation to construction contracts, adjudication is a statutory procedure by which any party to the contract has a right to have a dispute decided by an adjudicator, normally used to ensure payment. It is intended to be quicker and more cost effective than litigation or arbitration. T

Adjudication is also sometimes used to describe a non-specific alternative dispute resolution process in which a third party makes a decision as to the best way to resolve the dispute. In this sense, ombudsmen, arbitrators and judges are all types of adjudicators.

Early neutral evaluation

In early neutral evaluation (ENE) an independent third party considers the claims made by each side and gives an opinion, either on the likely outcome or on a particular point of law. The opinion is non-binding; the parties can use it if they wish in considering how they want to proceed with their case. The opinion can be the basis for settlement. ENE can be particularly valuable to get an opinion on a point of law or to get a more realistic view of the chances of success at trial.

Expert determination

In expert determination, an independent third party considers the claims made by each side and issues a binding decision. The third party is usually an expert in the subject of the dispute and is chosen by the parties, who agree at the outset to be bound by the expert's decision. It can be most suitable for determining technical aspects of a complex dispute. Expert determination is also a process of adjudication (see above), and parties agree at the outset to be bound by the expert's decision.

Should you require legal help or legal representation regarding any aspect of alternative dispute resolution, then please complete your free legal enquiry form.

Further Resources - Alternative Dispute Resolution Law & Lawyers