Alternative Methods of Dispute Resolution

Litigation has a number of drawbacks as a way of settling civil disputes, and does not always lead to the
best result.
 It is expensive and slow, and gives a clear advantage to a wealthier party who can string out the
proceedings until the other runs out of money.
 It is unsuited to disputes involving technical issues with which an ordinary judge is unlikely to be
familiar.
 It is adversarial, with each side trying to gain as much and give away as little as possible, without
regard to what would be a fair solution.
 It tends to destroy harmonious personal and business relationships, both while it is in progress
and forever afterwards.
For these and other reasons, there are several alternative ways of resolving disputes that may be more
appropriate in particular cases.

ARBITRATION
Arbitration is a step away from formal litigation, but shares with it an essentially adversarial process and
the fact that the ultimate decision (made by a third party) is binding. It has been around for several
hundred years, and is common in public international law and international trade, but arbitration may
be an option in domestic law too. Its distinguishing feature is that the parties in dispute agree to accept
as binding the decision of an independent third party, and to waive other rights of action.
The parties may include an arbitration clause in their original contract, committing themselves to accept
arbitration should the need arise and specifying the arbitrator or the process of appointment (for
example, nomination by the Chartered Institute of Arbitrators.) Alternatively, parties already in dispute
may voluntarily agree at that stage to refer the matter to arbitration rather than pursue other remedies.
The costs of arbitration (including the arbitrator's fee) are paid by the parties in whatever proportions
they may agree.
A clause providing for arbitration is common in major contracts between large businesses, and can also
be found in some consumer agreements: such a clause (sometimes called a Scott v Avery clause) has
been enforceable for almost 150 years, and unless special circumstances exist the courts will refuse to
hear litigation brought in breach of such a clause.
The actual procedure is agreed by the parties and the arbitrator together; there is no power to compel
(e.g. disclosure) as in litigation. The process is still essentially adversarial, with each side putting forward
its own arguments and evidence; there may be oral hearings, but often the arguments are submitted in
writing. An arbitrator has discretion over the awarding of costs, but normally awards reasonable costs to
the winner. The arbitrator's decision is binding on the parties, and can be enforced as if it were a court
judgment. There is no right of appeal, except to the High Court against a "serious irregularity" such as an
excess of jurisdiction, a violation of natural justice, or a visible error of law.
Cases allocated to the small claims track are heard by a process very similar to arbitration, but this is
actually a form of litigation rather than arbitration as such. The judge is the District judge appointed to
that particular court and the procedural rules are those set out in the Civil Procedure Rules rather than
the parties' own choice.

MEDIATION OR CONCILIATION
Mediation is widespread in domestic disputes (e.g. divorce and custody cases), but operates in other
fields too. An impartial third party acts as mediator, not imposing any decision but encouraging the
parties to discuss their differences and to reach their own agreed solution. Mediation is often much
quicker than litigation - a £½ million commercial mediation might take just a day or two - and judges
often encourage the parties to try mediation before going to court as a last resort. Apart from anything
else, it has the advantage of allowing the parties to vent their non-legal grievances, free from the
constraints of evidential relevance.

Halsey v Milton Keynes General NHST (2004)

Dunnett v Railtrack [2002]

Mediation procedures vary, but typically there is an initial meeting at which each party puts forward its
position, followed by private meetings between the mediator and each side in turn, and followed by a
second plenary meeting in which the mediator helps the parties negotiate face-to-face. The whole
process is confidential: lawyers may sometimes be present, but there are rarely any outside witnesses
giving evidence. No one should disclose what is said to outsiders, but equally the mediator should not
disclose to one side (except by consent) the contents of her discussions with the other.
The mediator is a facilitator rather than a participant in the debate. She may ask probing questions
(particularly in the private sessions to determine each side's "bottom line"), and may tentatively suggest
compromises for the parties' consideration. But she does not express her own opinions except perhaps
as a last resort if the process seems to be breaking down; the ultimate decision (which may be
enforceable as an ordinary contract once it is reached) is the responsibility of the parties themselves.
Family mediation has been around for some time; unlike commercial mediation, the mediator and both
parties usually remain together in the same room throughout. This is an area where the preservation of
amicable relationships (even after divorce) is particularly important, but it is precisely in this area that
emotional blackmail can be used to greatest effect. The sections of the Family Law Act 1996 that would
have made it almost compulsory for the parties to attempt mediation before presenting a divorce
petition have now been repealed, but legal aid has been available for family mediation since 1998.
Conciliation is similar to mediation, and many people use the two words as if they meant the same. But
a conciliator takes a more pro-active role than a mediator, giving her own opinion from time to time and
(at the end, if no agreement has been reached) indicating how a court would be likely to decide.
ACAS (the Advisory Conciliation and Arbitration Service) operates a conciliation scheme (backed by
statute) in cases of unfair dismissal. The parties must normally try to resolve their disagreement through
this scheme before going to an Employment Tribunal. (About two-thirds of cases in the ACAS scheme
are settled or withdrawn before they reach the Tribunal, but this may be due to the employee's financial
need for a quick resolution.)
"Med-arb" is an American development rarely seen in the UK. With the consent of the parties, an
independent third party begins by acting as a mediator, but becomes an arbitrator if no agreed solution
can be found. This process gets over the frustration that may arise in litigation or arbitration, when the
judge or arbitrator may be able to see an obvious solution that would give each party most of what they
want, but cannot suggest it without compromising her own impartiality.
ADVANTAGES AND DISADVANTAGES
The main advantages of ADR (as compared with litigation) are its relative speed, cheapness and
informality. Some methods are quicker, cheaper and less formal than others, of course, but ADR is
generally considered suitable for claimants and defendants representing themselves without legal
assistance.
On the other hand, no public funding is generally available for ADR proceedings, and because costs lie
where they fall (unlike civil litigation, where the costs of both sides are normally paid by the loser)
conditional fee arrangements are rarely suitable. Where the parties represent themselves one may be
much more articulate (and in mediation, more ruthless) than the other, which may affect the outcome.
The absence of a doctrine of precedent makes outcomes less predictable, and there are limited
opportunities for appeals against decisions whose correctness may be in doubt.

ADMINISTRATIVE TRIBUNALS
Tribunals have been defined as "Bodies outside the hierarchy of the courts with administrative or
judicial functions" (Curzon, Dictionary of Law, 1994, p387).
Administrative tribunals resolve disputes between, for example, the citizen and an officer of a
government agency or between individuals in an area of law in which the government has legislated the
conduct of their relations.
Administrative tribunals have been established by statute, in the main, to resolve:
· Disputes between a private citizen and a central government department, such as
claims to social security benefits;
· Disputes which require the application of specialized knowledge or expertise, such as
the assessment of compensation following the compulsory purchase of land; and
· Other disputes which by their nature or quantity are considered unsuitable for the
ordinary courts, such as fixing a fair rent for premises or immigration appeals.

The main reasons for the creation of administrative tribunals may be identified as:
· The relief of congestion in the ordinary courts of law (the courts could not cope with
the case-load that is now borne by social security tribunals, employment tribunals and
the like);
· The provision of a speedier and cheaper procedure than that afforded by the ordinary
courts (tribunals avoid the formality of the ordinary courts); and
· The desire to have specific issues dealt with by persons with an intimate knowledge
and experience of the problems involved (which a court with a wide general jurisdiction
 might not acquire).
Note: a distinction must be drawn between administrative tribunals and domestic tribunals. Domestic
tribunals are bodies appointed within an organization to decide disputes, eg, the Disciplinary Committee
of the General Medical Council, which controls the professional activities of doctors.

It can be said that tribunals are "controlled" in three ways:

· They are governed by the Tribunals and Inquiries Act 1992;
· The Council on Tribunals keeps under review the constitution and working of a large number of
tribunals; and
· They are controlled by the courts, usually through an appeal route, and tribunals are obliged to
observe the principles of natural justice and are subject to the supervision of the Queen's Bench
Division of the High Court.
(1) Tribunals and Inquiries Act 1992
The Franks Committee on Tribunals and Inquiries (1957) made recommendations for
improving tribunals which were implemented by the Tribunals and Inquiries Act 1958,
which was re-enacted in 1971 and again in 1992:
(a) The chairmen of certain tribunals were selected by the minister concerned from a
panel of persons approved by the Lord Chancellor (s6). Chairmen are now selected by
the Lord Chancellor and the minister.
(b) In the case of most tribunals the minister's power to terminate membership of a
tribunal can only is exercised with the concurrence of the Lord Chancellor (s7).
(c) All tribunals are under a duty, if requested on or before the giving or notification of
the decision, to give reasons for their decision, such reasons whether written or oral
being deemed to form part of the record for the purpose of review by certiorari (s10).
(d) Appeals on points of law lie from certain tribunals to the High Court (s11).

(2) Council on Tribunals

The council is under a duty to keep under review the constitution and working of a large
number of tribunals. The members of the Council (between 10 and 15) are appointed by
the Lord Chancellor. The Council meets once a month. The role of the Council on
Tribunals is as follows:
(a) To report on tribunals under its supervision and any matters referred to it by the
Lord Chancellor (s13);
(b) To receive and investigate complaints about tribunals (but there is no power to alter
tribunal decisions);
(c) To make an annual report to the Lord Chancellor (s4);
(d) To be consulted before any procedural rules are made for any tribunals subject to its
 supervision (s8);
(e) To make general recommendations on the appointment of tribunal members (s5).

(3) The Courts

Tribunals are obliged to observe the principles of natural justice, namely, that no man may be a judge in
his own cause (the rule against bias) and that both sides to the dispute must be heard and, moreover,
given a hearing which is fair. Administrative tribunals are public statutory bodies inferior to the ordinary
courts of law and, as such, they are subject to the supervision of the Queen's Bench Division of the High
Court, which, on an application for judicial review of a tribunal's decision, may issue the prerogative
remedies of certiorari, mandamus and prohibition. It may do so for a variety of reasons, as where there
has been a violation of the principles of natural justice, or where the tribunal has refused to exercise its
jurisdiction in a particular case or has exceeded its jurisdiction, or where there is an error of law on the
face of the record of the tribunal's proceedings. Note: this supervision by the High Court takes the form
of reviewing the legality of the tribunals' acts, not the rehearing of the case on its merits.

Advantages and Disadvantages

The advantage of a tribunal is that it is:
(a) quick with no long waits for the case to be heard and it is dealt with speedily;
(b) cheap, as no fees are charged;
(c) staffed by experts who specialized in particular areas;
(d) characterized by an informal atmosphere and procedure;
(e) allowed not to follow its own precedents, although tribunals do have to follow court
precedents.
The disadvantages of tribunals are that:
(a) some are becoming more formal;
(b) they are not always independent of the Government, although the Independent
Tribunal Service now recommends possible chairmen to the Lord Chancellor;
(c) some tribunals act in private;
(d) they do not always give reasons, although under s10 of the Tribunals and Inquiries
Act 1992, tribunals listed in the Act must give a written or oral statement of reasons, if
asked to;
(e) legal aid is not generally available, except for the Lands Tribunal, the Employment
Appeal Tribunal and the Mental Health Review Tribunal;
(f) there is no general right of appeal to the courts: it all depends on the particular
statute creating the tribunal. The 1992 Act gives a right of appeal on a point of law to
the High Court from specified tribunals.