alternative dispute resolution essay uk

• Practical Law

Overview and comparison of ADR processes

Practical law uk practice note overview 0-203-8727  (approx. 20 pages).

• Construction ADR
• Claims, complaints and insurances: practice compliance
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• Breaches, investigations and litigation
• Adjudication
• Dispute resolution

Mandatory (alternative) dispute resolution is lawful and should be encouraged

Civil Civil Justice Council Reports

The Civil Justice Council’s report on compulsory alternative dispute resolution (ADR) has been published today (Monday 12 July 2021).

In January 2021, the Master of the Rolls asked the Civil Justice Council to report on the legality and desirability of compulsory ADR.

The report concludes that mandatory (alternative) dispute resolution is compatible with Article 6 of the European Human Rights Convention and is, therefore, lawful.

Chair of the Judicial/ADR Liaison Committee and lead Judge for ADR, Lady Justice Asplin, said: “This report addresses questions which are central to the shape and design of dispute resolution in the twenty-first century.

“We have concluded that (A)DR can be made compulsory, subject to a number of factors. More work is necessary in order to determine the types of claim and the situations in which compulsory (A)DR would be appropriate and most effective for all concerned, both in the present system and in relation to online justice.

“Our conclusions place another useful and powerful tool in the box. They also provide the opportunity to initiate a change of culture in relation to dispute resolution which will benefit all concerned.”

In response to the report, the Master of the Rolls, Sir Geoffrey Vos, chair of the Civil Justice Council and Head of Civil Justice, said: “I am grateful to Lady Justice Asplin and the working group for this excellent report. They conclude that it is possible, where a court process remains available, lawfully to mandate (alternative) dispute resolution.

“As I have said before, ADR should no longer be viewed as “alternative” but as an integral part of the dispute resolution process; that process should focus on “resolution” rather than “dispute”. This report opens the door to a significant shift towards earlier resolution.

“Meanwhile, it is exciting to see the HMCTS reform project delivering online justice. All kinds of dispute resolution interventions will be embedded within that online process”.

Related content

• Download Civil-Justice-Council-Compulsory-ADR-report-1.pdf file CJC report on compulsory alternative dispute resolution (ADR) 730.58 kb

Dispute Resolution Ombudsman

Undergraduate ADR Essay Writing Competition

Introduction

The Judicial/ADR Liaison Committee has facilitated this Alternative Dispute Resolution (ADR) essay writing competition to allow undergraduates who are interested in pursuing a career in ADR to gain valuable experience with some of the leading organisations in the sector.

The winning entrant will choose first from the following ADR Experience Placements, with the runner-up having second choice and so on.

The ADR Placements are:

Brick Court Chambers

Bill Wood QC is delighted to offer an observership at a commercial mediation taking place in London. The observer will discuss the case with Bill in advance, read the case materials, and accompany Bill on the day of the mediation in the discussions with the parties and any joint sessions that take place. The observer will have a chance to discuss the day’s developments and challenges with Bill. If agreement in principle is reached they will be able to work with Bill in 'putting the agreement to bed'. The observer will have to undertake a duty of confidentiality in relation to their involvement and their participation is subject to the express agreement of the parties to the mediation (usually readily forthcoming). If the meetings takes place remotely then the observer will participate online in the same way and have the same opportunities for private discussion with Bill.

Civil Mediation Council (CMC)

The CMC is pleased to offer to one of those placed 1st-4th in Judicial/ADR Liaison Committee’s facilitated Essay Writing Competition 2022, two days observation of a commercial mediator in action. You will spend two separate days shadowing two different CMC accredited mediators as they work to resolve a commercial dispute. This will give you a real insight into how a mediation works, an opportunity to see different mediation styles in action and give you the chance to ask and learn from two leading commercial mediators. Mediations take place around the UK so there is flexibility in location and date.

Dispute Resolution Ombudsman (DRO)

We are delighted to offer one of the winners a placement of 1-week duration. Our placements are sought after by those considering a career in Alternative Dispute Resolution and will typically include the following activities:

Initial training and orientation providing insights into the role of an Ombudsman

• Shadowing an Ombudsman
• Fundamentals of case management
• Collating evidence for a case file
• Drafting Adjudications and other documentation.

Clerksroom mediation

David Isbister of Clerksroom mediation is happy to offer an observation at one of his mediations. David tends to get selected for contentious trust, probate and TLATA disputes because of his background as a private client lawyer. The observation will either be in-person or online (depending on the mediation and location). During the mediation David will take the observer through the mediation process, and will discuss the issues in dispute before it starts and its progress throughout the day, he will also answer any questions the observer may have.

We will inform all entrants of whether they have been successful or unsuccessful. Please note that we unfortunately do not have capacity to provide feedback on unsuccessful entries.

Winners are entitled to refer to the achievement on their CV.

Judging Panel

Kevin Grix, CEO and Chief Ombudsman at the Dispute Resolution Ombudsman

Kevin was appointed in 2008 and is responsible for directing the activities of the Ombudsman. He read law at university for 3 years and graduated with honours, prior to studying to be a Barrister in London at the Inns of Court School of Law. He was called to the Bar by the Honourable Society of the Inner Temple, after successfully passing his Bar exams and is also professionally qualified by the Chartered Institute of Arbitrators (CIArb). In 2015 Kevin was appointed to the Executive of the Ombudsman Association, a body that advises government and helps to oversee the ombudsman and complaint handling landscape in the United Kingdom. In November 2018, Kevin was invited to join the Board of Trustees at Citizens Advice Stevenage.

Kevin also holds a position on the Advisory Board to the Independent Football Ombudsman, a scheme that was established by the football authorities (The Football Association, The Premier League, and The Football League) to receive and adjudicate on complaints which have not been resolved at an earlier stage. Kevin has a keen interest in consumer affairs and has appeared several times on television, radio and in the press to provide expert opinion on a range of issues that affect consumers. He has a specialist understanding of consumer law and has written and presented a series of accredited courses and seminars in this field.

Kevin and his colleague, Deputy Chief Ombudsman Judith Turner, are the co-authors of Volume 28 of Atkin's Court Forms and Precedents on Ombudsman schemes in England and Wales. Published by LexisNexis in 2020, it forms part of the UK’s only encyclopaedia of civil litigation forms, precedents and procedure and is a leading authority on the process that should be followed by complainants.

Rebecca Clark, Deputy Chair at the Civil Mediation Council

Rebecca Clark is the newly appointed volunteer Deputy Chair at the CMC. Based in Yorkshire, Rebecca is a full-time mediator with IPOS Mediation, specialising in commercial dispute resolution. Prior to becoming a mediator, Rebecca was Head of Litigation at the Government organisation set up to manage two former bad banks. Her novel approach to management and mediation in that role lead her to being awarded Legal Week’s Legal Counsel of the Year in 2013.

Essay Judging

• Essays may be subject to an initial evaluation by a suitably qualified team of Ombudsman or Mediators.
• Essays will be evaluated for:

(1) Evidence of original thought and creativity on the subject matter (40%);

(2) Analysis and reasoning (30%);

(3) Writing quality and clarity (20%);

(4) Compliance with the essay competition requirements (10%).

Eligibility

1. The competition is open to all undergraduate and graduate students who, at the time of entry, are enrolled full- or part-time at an accredited, degree-granting institution of higher education seeking an undergraduate or graduate degree.

2. Students may be enrolled in any discipline.

3. Students may be enrolled in any college or university based in the UK.

4. Papers written for courses are eligible, but all papers must be the original, unpublished work of an individual student.

5. Any form of plagiarism will result in automatic disqualification. The organiser’s determination in this respect is final.

6. Each student may submit only one essay.

7. Entries must be submitted by email, and entries are open from 9am on 10 January 2022 to 10pm on 21 April 2022. Late submissions will not be accepted.

Please note; the competition winners will be responsible for covering their own travel and accommodation expenses.

Requirements

1. Essays should be no more than 1,500 words in length (+/-5%).

2. A complete bibliography should be included, if appropriate. The bibliography and/or footnotes will not count towards the word limit. The word limit must be included on the document.

3. Essays should be typed and double-spaced, in an easily readable font (such as Times New Roman), with 1” margins.

4. All pages must include the title of the essay and page numbers.

5. Submissions will be judged anonymously so please do not include any personally identifying information (name, university) in the essay document. Each submission will be provided with a unique reference number that can be linked to the Application Form submitted by the entrant, but which remains anonymous to the Judging Panel.

6. Entrants may complete the Application form by filling in the fields by hand/on a computer. The letters must be written block capitals. The form must be signed (either by hand/electronically) by entrants and supervisors.

7. Essays must be submitted in English.

To enter the competition;

Write a paper on the topic, The Impact of Covid-19 on the Development of ADR in the UK. The entry will be reviewed by a panel of Judges and ADR specialists who will choose the best three submissions.

Title : The Impact of Covid-19 on the Development of ADR in the UK. Deadline : 10pm, 21st April 2022 Word Count: 1,500 words

Terms and Conditions

Submit all entries to: [email protected] along with a signed copy of the Terms and Conditions

All winners will be notified on Friday 6th May.

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Alternative dispute resolution after Brexit

This guidance sets out the implications for UK lawyers advising clients considering cross-border alternative dispute resolution (ADR) from the end of the Brexit transition period.

It’s relevant for UK lawyers advising clients in cross-border civil and commercial disputes involving parties from EU member states.

Introduction

From the end of the transition period, Directive 2008/52/EC (the EU Mediation Directive) applying to cross-border civil and commercial disputes involving parties from EU member states is not applicable between the UK and the EU member states.

In addition, businesses and consumers in the UK are no longer able to use the Online Dispute Resolution (ODR) platform which links consumers with ADR providers in the EU.

The purpose of the EU Mediation Directive was harmonisation through the imposition of minimum standards and rules across a range of matters.

However, only a small number of changes to UK legislation were needed due to mediation law and culture being well established in the UK already.

On this basis, in practical terms at least, the legislative changes are unlikely to have a huge effect on the way cross-border mediations are conducted in the UK.

Solicitors involved in a cross-border mediation which takes place in an EU/EFTA country will be subject to the rules of that country on foreign lawyers’ practice.

The Mediation Directive

The EU Mediation Directive came into force in 2008, applying to cross-border civil and commercial disputes involving parties from EU member states.

The definition of a cross-border dispute is, subject to some exceptions, a dispute where at least one party is domiciled in a member state.

On 20 May 2011, England and Wales enacted legislation ( Cross-Border Mediation (EU Directive) Regulations 2011 ) (the 2011 Regulations) to ensure compliance with the EU Mediation Directive around the areas of confidentiality, enforceability and limitation. Issues concerning court intervention and quality were dealt with through existing legislation.

The 2011 Regulations resulted in the following rule changes to cross-border mediations taking place in the UK:

• confidentiality – confirmation within the 2011 Regulations (and via changes to the Civil Procedure Rules) that a mediator has the right (subject to some exemptions) to withhold mediation evidence in court proceedings and arbitrations
• enforcement – a procedure was inserted into part 78 of the Civil Procedure Rules for the enforcement of cross-border mediation settlements (Mediation Settlement Enforcement Orders). The provisions allow parties (by consent) to have cross-border mediated settlement agreements converted to a court order, to aid enforcement
• limitation – extensions of limitation periods where mediation is agreed in cross-border disputes (through amendment of pre-existing legislation)

What has changed?

Brexit has affected laws around confidentiality, enforceability and limitation periods, as the UK government brought forward a statutory instrument repealing the 2011 Regulations that implemented the EU Mediation Directive.

The Cross-Border Mediation (EU Directive) (EU Exit) Regulations 2019 were made on 1 March 2019 and came into effect on 1 January 2021.

Article 69 of the Withdrawal Agreement sets out the circumstances in which EU law applies in the case of ongoing procedures (with mediation covered within this).

On 1 January 2021, the 2011 Regulations and associated changes to the Civil Procedure Rules, listed above, were repealed.

As a result, the provisions of the EU Mediation Directive (relating to confidentiality, enforcement and limitation highlighted above) no longer apply to cross-border mediations taking place in the UK.

The only exceptions to this occur where (before the end of the transition period) the court invites or orders the parties to use mediation or the parties agree to mediation.

The UN Convention on International Settlement Agreements Resulting from Mediation (Singapore Convention on Mediation) came into force on 12 September 2020. Neither the UK nor the EU are signatories, so Brexit has no effect in this area.

The European Online Dispute Resolution (ODR) platform

Regulation (EU) 524/2013 (Online Dispute Resolution Regulation) led to the establishment of a free online platform (available in all languages of the EU) by which traders and consumers in member states can attempt to settle disputes relating to online sales or service contracts and access ADR providers in the EU.

All traders within the EU that engage in online sales, service contracts, and online marketplaces are required to provide a link on their website to the ODR platform.

The Online Dispute Resolution Regulation is revoked by the Consumer Protection (Amendment etc.) (EU Exit) Regulations 2018 .

From 1 January 2021, businesses and consumers in the UK are no longer able to use the ODR platform.

However, UK consumers can still access ADR entities in EU countries, just not through the ODR.

In addition, online traders selling in the UK are no longer obliged to provide consumers with information about the EU's ODR platform on their websites.

EU Directive 2013/11/EU (the ADR Directive)

The Alternative Dispute Resolution for Consumer Disputes (Competent Authorities and Information) Regulations 2015 implemented the provisions of the ADR Directive (as amended by the Consumer Protection (Amendment etc.) (EU Exit) Regulations 2018).

From 1 January 2021, the UK secretary of state has responsibility for the publication of the list of ADR entities and is no longer required to send this list and report to the European Commission.

There's no longer a requirement for UK-based ADR entities to offer cross-border services to consumers residing in EU member states.

Traders are no longer able to offer consumers EU alternatives to UK-based ADR entities.

From the end of the transition period, the following continues to apply to UK traders:

• if the trader is obliged (by law, contract or trade association membership) to use the services of an ADR entity it must include the name and address of an ADR entity on its website or sales terms
• if the trader has exhausted its internal complaint handling procedure following the initiation of a dispute, it must inform the consumer of the name and website address of an ADR entity that would be competent to deal with the complaint (albeit the trader does not need to engage with such ADR)

Arbitration

Arbitration is not regulated by the EU and was not affected by Brexit.

Arbitration proceedings continue to be regulated within the jurisdictions of:

• England and Wales and Northern Ireland by the Arbitration Act 1996
• Scotland by the Arbitration (Scotland) Act 2010

The Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention) continues to govern the enforcement of international arbitral awards. 

The New York Convention is a United Nations convention and therefore not affected by Brexit.

The UK and all EU member states are included within the 161 nations which are signatories to the New York Convention.

The impact on how businesses enforce arbitral awards internationally from the end of the transition period is relatively limited.

Further information

For more information, see the UK government guidance on ADR and ODR after the end of the transition period .

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This guide to finding essential readings in the Online Library databases provides assistance in locating the essential readings for Alternative Dispute Resolution.

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Essential reading and resources – 2

Roberts, S. and M. Palmer Dispute processes: ADR and the primary forms of decision-making . (Cambridge: Cambridge University Press, 2005) 2nd edition

• This ebook is available in Cambridge Core where you can log in with your student portal password and begin your search for the ebook.
• Once logged in search for the author and first few words of the title using the search box on the home page.

• Alternatively,  go directly to the book .

Essential reading and resources – 3

Cappelletti, M. ‘Alternative dispute resolution processes within the framework of the world-wide access-to-justice movement’, The Modern Law Review 56(3) 1993, pp.282–96.

• This journal article is available in HeinOnline .
• Log into HeinOnline with your student portal password, by selecting University of London Online Library (Portal Login).
• Enter the author and first few words of the title into the search box at the top of the homepage to find the article.

Essential reading and resources – 4

Antaki, N.N. ‘Chapter 11: Cultural diversity and ADR practices in the world’ in Goldsmith, J.C., A. Ingen-Housz and G.H. Pointon (eds), ADR in business: practice and issues across countries and cultures 1 . (Alphen aan den Rijn: Kluwer Law International, 2006)

• This ebook is available from Kluwer Arbitration.  Access to Kluwer Arbitration requires a Kluwer Arbitration username and password, which you can request by contacting the Online Library request form .
• Login and go directly to the chapter .

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Sander, F.E.A. and L. Rozdeiczer ‘Matching cases and dispute resolution procedures: detailed analysis leading to a mediation-centred approach’, Harvard Negotiation Law Review 11 2006, pp. 1

• This journal article is available in HeinOnline  (and Academic Search Complete ).

Essential reading and resources – 5

Rabinovich-Einy, O. and E. Katsh ‘A new relationship between public and private dispute resolution: lessons from online dispute resolution’, Ohio State Journal of Dispute Resolution 32(4) 2017, pp.695–724

Essential reading and resources – 6

Sorabji, J. ‘The online solutions court – a multi-door courthouse for the 21st century’, Civil Justice Quarterly 36(1) 2017, pp.86–108.

• This journal article is available from Westlaw .
• Log into Westlaw with your student portal password, by selecting University of London Online Library (Portal Login).
• Enter the author and first few words of the article title into the search box on the home page to retrieve the journal article.

Essential reading and resources – 7

Cortes, P. ‘The online court – filling the gaps of the civil justice system?’, Civil Justice Quarterly 36(1) 2017, pp.109–26.

• This journal article is available from Westlaw.

Ahmed, M. ‘Implied compulsory mediation’, Civil Justice Quarterly 31(2) 2012, pp.151–75.

Roberts, S. and M. Palmer Dispute processes, ADR and the primary forms of decision-making . (Cambridge: Cambridge University Press, 2005) 2nd edition. Chapter 5, G, Ethical Issues in negotiation, pp.146–51

• This ebook is available in Cambridge Core where you can log in with your student portal password and begin your search for the eBook.
• Alternatively, go directly to the book .

Spencer, D. and M. Brogan Mediation law and practice. (Cambridge: Cambridge University Press, 2006) Chapter 6, pp.182–6, pp.202–12 (up to but not including Ethical standards for mediators) and pp.214–22

P.H. Gulliver ‘Negotiations as a mode of dispute settlement: towards a general model’, Law & Society Review 7(4) 1973, pp.667–92.

• Log into HeinOnline with your student portal password, by selecting University of London Online Library (Portal Login).

Lewicki, R.J. and R.J. Robinson ‘Ethical and unethical bargaining tactics: an empirical study’, Journal of Business Ethics 17(6) 1998, pp.665–82.

• This journal article is available in JSTOR.
• Log into  JSTOR with your student portal password, by selecting University of London Online Library (Portal Login).
• Enter the author and first few words of the title into the search box on the homepage to find the article.

• This journal article is also available from ABI/Inform Global.

Banas, J.T. and J.M. Parks ‘Lambs among lions? The impact of ethical ideology on negotiation behaviours and outcomes’, International Negotiation 7(2) 2002, pp.235–60

• This journal article is available in HeinOnline.

• This journal article is also available from Business Source Premier.

Spencer, D. and M. Brogan Mediation law and practice. (Cambridge: Cambridge University Press, 2006) Chapter 3 The theory and philosophy of mediation.

• This ebook is available in Cambridge Core where you can log in with your student portal password and begin your search for the eBook.

Menkel-Meadow, C. ‘Chapter 3 The future of mediation worldwide: legal and cultural variations in the uptake of or resistance to mediation’ in Macduff, I. (ed) Essays on mediation: dealing with disputes in the 21st century: global trends in dispute resolution . (Alphen aan den Rijn: Wolters Kluwer, 2016)

• This ebook is avaiable from Kluwer Arbitration.
• Please note : to access Kluwer Arbitration you need to request a password from the Online Library.
• Enter the author of the chapter (Menkel-Meadow) into the search box on the homepage to locate the reading.

• Alternatively,  go directly to the book chapter .

Waye, V. ‘Mandatory mediation in Australia’s civil justice sys tem’, Common Law World Review 45(2–3) 2016, pp.214–35.

• This journal article is available from LexisLibrary.
• Log into LexisLibrary with your student portal password by selecting University of London Online Library (Portal Login).
• Once logged in, select  journals from the top menu, and enter the author and first few words of the title into the relevant search boxes.

Love, L.P. ‘The top ten reasons why mediators should not evaluate’, Florida State University Law Review 24(4) 1997, pp.937–48.

Briggs, J. ‘Mediation privilege? Part one’, New Law Journal 159(7363) 2009, p.506.

Briggs, J. ‘Mediation privilege? Part two’, New Law Journal 159(7364-5) 2009, p.550

• These journal articles are available from LexisLibrary .
• Once logged in, select  journals from the top menu, and enter the author and first couple of words of the title into the relevant search boxes.

Brazil, W.D. ‘Early neutral evaluation or mediation? When might ENE deliver more value?’, Dispute Resolution Magazine 14 2007, pp.10–5.

Levine, D.I. ‘Early neutral evaluation: the second phase’, Journal of Dispute Resolution 1 1989, pp.1–57.

Lindeman, K. ‘Unravelling settlements made with “eyes wide open”: Zurich Insurance Co Plc v Hayward’, Civil Justice Quarterly 36(3) 2017, pp.273–80.

Dundas, H.R. ‘A rare case: an expert determination is set aside’, Arbitration 81(4) 2015, pp.469–73.

• Select options, and select journal articles (to only search for journal articles).

Blackaby, N., C. Partasides, A. Redfern and M. Hunter Redfern and Hunter on international arbitration . (Oxford: Oxford University Press, 2015) 6th edition. Chapter 1 An overview of international arbitration.

• Please note: to access Kluwer Arbitration you need to request a password from the Online Library.
• You will find a link to Redfern and Hunter on International Arbitration on the left side of the Kluwer Arbitration home page under books.

• Redfern and Hunter on International Arbitration is also available from Westlaw, in the Books section.

Blackaby, N., C. Partasides, A. Redfern and M. Hunter Redfern and Hunter on international arbitration . (Oxford: Oxford University Press, 2015) 6th edition. Chapter 2 Agreement to arbitrate.

• See Topic 16 reading guidance.

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Moses, M.L. The principles and practice of international commercial arbitration . (Cambridge: Cambridge University Press, 2017) 3rd edition. Chapters 6 The tribunal and 7 The arbitral proceedings .

• This ebook is available in Cambridge Core where you can log in with your student portal password, and begin your search for the ebook.

• Ensure that you select the 3rd. edition of the book.

Trikha, S. ‘Procedural non-compliance in international commercial arbitration’, International Arbitration Law Review 18(5) 2015, pp.95–104.

Rivkin, D.W. and S.J. Rowe ‘The role of the tribunal in controlling arbitral costs’, Arbitration – the International Journal of Arbitration , Mediation and Dispute Management 81(2) 2015, pp.116–30.

Jones, D. ‘The Roebuck Lecture, 9 June 2016: using costs orders to control the expense of international commercial arbitration’, Arbitration – the International Journal of Arbitration, Mediation and Dispute Management 82(3) 2016, pp.291–301

• Log into Westlaw with your student portal password, by selecting University of London Online Library (Portal Login).

Wyss, L. ‘Expedient and efficient arbitrations need strong arbitrators – but how “strong” should[AB1]  and may arbitrators get? Part I’, International Arbitration Law Review 20(2) 2017, pp.69–77.

Wyss, L. ‘Expedient and efficient arbitrations need strong arbitrators – but how “strong” should and may arbitrators get? Some thoughts on best practice in international commercial arbitration. Part II’, International Arbitration Law Review 20(3) 2017, pp.79–90

• These journal articles are available from Westlaw.
• Enter the author and first few words of the article title into the search box on the home page to retrieve the journal articles.

Blackaby, N., C. Partasides, A. Redfern and M. Hunter Redfern and Hunter on international arbitration . (Oxford: Oxford University Press, 2015) 6th edition. Chapter 10 Challenge of arbitral awards

Miles, W. and J. Li ‘Do England’s expansive grounds for recourse increase delay and interference in arbitration?’ Arbitration – the International Journal of Arbitration, Mediation and Dispute Management 80(1) 2014, pp.35–47.

• Enter the author and a "expansive grounds" into the search box on the home page to retrieve the journal article.

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Alternative dispute resolution.

Key information

Module overview.

The main aim of this module is to offer a critical analysis of the theoretical and practical discourse of dispute processes in comparative perspective. The module considers a range of issues and materials relating to the development of Alternative Dispute Resolution (ADR) and current debates on civil justice reform in selected jurisdictions.

The module first examines the emergent concern in social science and jurisprudential writing with the nature and significance of disputes, and considers the manner in which traditional approaches have been “rediscovered‟ and utilised in the refurbishment of civil justice through first the “Access to Justice‟ movement and then the “ADR‟ movement. The module also investigates the manner in which disputes are characterised, the diverse views located in the debates that surround disputes, the causes of disputes, and the handling of disputes. It introduces the major theoretical approaches to disputes and their resolution, and examines the decision making processes used in response to disputes.

In particular, the module examines negotiation, and mediation, and considers these processes as they are applied in a range of settings. It is informed by the view that knowledge of the differing processes of dispute resolution and the surrounding discourses is an invaluable subject matter of academic enquiry. In addition, such knowledge enables lawyers and others to be more resourceful and effective in their legal problem solving.

By the end of the module, students will have gained an understanding of the theoretical and practical dimensions of dispute resolution, and the groundwork laid for further inquiry into and application of non-adversarial methods and skills in dispute resolution. In particular, through practical experience in simulated exercises, students will gain an understanding of the dynamics of mediation and negotiation and the necessary skill of the mediator.

Objectives and learning outcomes

• Understanding of theoretical and practical issues surrounding the differing processes of dispute resolution;
• Knowledge and understanding of the core literature relating to the areas studied on the module, an in particular negotiation and mediation;
• Basic ADR skills and practice experience that improve understanding of issues of ADR in legal practice.
• Weekly 2-hour seminar
• Group mediations (1 hour x 3)

Method of assessment

• Essay Plan: 20% (500 words)
• Extended Essay: 80% (2500 words)

Suggested reading

• Roberts, Simon and Michael, PALMER (2005) Dispute Processes: ADR and the Primary Forms of Decision Making, Second Edition, Cambridge and New York: Cambridge University Press.
• Felstiner, W., R. ABEL, & A. SARAT (1980-1) “The Emergence and Transformation of Disputes:  Naming, Blaming, Claiming  etc.,” Law and Society Review,  Vol.  15, pp. 631-654
• Fuller, Lon (1978) “The Forms and Limits of Adjudication,” Harvard Law Review, vol. 92, pp. 353-409
• Nader, Laura (1993) “Controlling Processes in the Practice of Law: Hierarchy and Pacification in the Movement to Reform Dispute Ideology,” Ohio State Journal on Dispute Resolution, Vol. 10, pp. 1-25
• Sander, Frank E. A. and Lukasz ROZDEICZER (2006) “Matching Cases and Dispute Resolution Procedures: Detailed Analysis Leading to a Mediation-Centred Approach,” Harvard Negotiation Law Review,  Vol. 11, No. 1, pp. 1-41

Important notice regarding  changes to programmes and modules .

Michael Bartlet

Alternative Dispute Resolution, Public Law, Law and Literature

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Using alternative dispute resolution to solve a problem

You might be able to solve a problem that you have by using alternative dispute resolution (ADR). For example, you might use ADR if you have a dispute with:

• a neighbour 
• family or an ex-partner
• a company, trader or seller – this is called a consumer problem.

ADR describes different ways you can solve a problem without having to go to court, like mediation.

Using alternative dispute resolution 

You might use alternative dispute resolution (ADR) instead of going to court. You can also use an ADR scheme to narrow down the problem before you go to court.

The main advantages of solving a problem with ADR are:

• it's usually cheaper, more flexible, faster and less stressful than going to court
• you might receive compensation
• it's confidential.

In most ADR schemes, a decision will be made based on the paper evidence you and the other party send in. You won’t always have to attend a hearing.

Some ADR schemes are legally binding. This means that you won't be able to take your case to court if you accept the decision from ADR but later change your mind.

What types of ADR are available

The main types of ADR available for solving a problem are:

• conciliation
• arbitration
• ombudsmen - in some consumer problems.

In consumer cases, the schemes might be offered to you by a trade association.

You can read more about  services you can use and alternatives to going to court on mygov.scot .

The Faculty of Advocates has a dispute resolution service. This is a specialist service offering resolution processes including arbitration, mediation, and adjudication. Members providing the service can also offer an expert determination. You can check what is available on the  Faculty of Advocates website .

Before choosing alternative dispute resolution 

Before choosing alternative dispute resolution (ADR), you should ask yourself the following questions:

• what do you want
• how much time do you have
• do you want to avoid meeting the other side in person
• how much will it cost to start the process
• will you have to pay the other side’s costs if you lose - in most ADR cases, each side pays their own costs, although in arbitration, the arbitrator can apportion costs if you and the other side agree to this
• do you want the option of going to court as well as ADR
• is there a time limit in which you have to act.

In consumer cases, you should also consider whether the trader is still trading.

Conciliation

Conciliation is usually free to use and is often offered first because it's less formal than arbitration.

Conciliation involves a conciliator who focuses on what you and the other side want and tries to find a way of solving the problem that you're both happy with. The aim is to reach an agreed solution that suits you both.

If you have a consumer problem, the contract you have with a trader might ask you to use their own conciliation service before you can use independent arbitration. You should check if they charge for this service and how long it will take to use.

If there's a clause in your contract about having to use conciliation, it might be an unfair term if:

• you have to pay
• the conciliation process means it takes longer to solve your complaint than it should.

Some local trading standards officers also offer a conciliation service. They'll be able to tell you if your local office offers conciliation and refer you for help.

Read more about  reporting a problem to Trading Standards .

If you're not sure if you should use a conciliation service that’s offered to you, you can get advice from an experienced adviser, for example at a Citizens Advice Bureau. Find out where to get advice .

If you don't agree with the outcome of the conciliation, you might be offered independent arbitration, or you can choose to take your case to court.

You can make an agreement from a conciliation legally binding if you make a written agreement.

With mediation, a mediator will help the 2 sides in a dispute to focus on the issue and consider the best way of solving it. The needs of both sides are taken into account, and you'll try to find common ground to find the best solution to the problem. The mediator is not there to make a decision but will help both sides to agree a solution.

Mediators might be employed by the organisation you're complaining about, but they should be trained to be impartial and help both sides reach an agreement.

You can make a mediated agreement legally binding if you make a signed mediated agreement.

Paying for mediation

You might have to pay for mediation, depending on the provider.

If you can't afford it, you might be able to get legal aid to help with some of the costs. You should look for a mediator who does legal aid work.

Finding a mediator

You can find a mediator through the Scottish Mediation website . 

Arbitration

Arbitration uses an independent arbitrator, usually from the Chartered Institute of Arbitrators (CIArb), to make an independent decision about your complaint. 

The decision the arbitrator makes is legally binding. You won't be able to go to court later if you don't agree with the outcome.

In many arbitrations, there is no court hearing. The decision made by the arbitrator is made from the papers sent in and the evidence that has been presented by you and the other side. You might have only given evidence in written form, or you and the other side might have been asked to tell the story of your position on the dispute.

Some arbitration schemes are free to use. If you choose independent arbitration, you'll have to pay a fee. You might be able to get the fee back in an award from the arbitration if you win the argument.

Read more about  how an arbitrator decides the outcome of a complaint .

Ombudsmen cover many services, including:

• estate agents
• retail services
• financial companies, such as banks, building societies, insurance companies and pensions
• energy, telephone and internet companies.

Ombudsmen are free for consumers to use, but traders have to pay.

You can use an ombudsman if:

• you've used the organisation's internal complaints service first, and
• it’s been longer than 8 weeks since you made your complaint, and you and the trader can’t agree on what to do.

Ombudsmen look into how a decision was made. This is more important for them to investigate than the decision itself. They also assess if there has been any injustice.

You'll need to supply paper evidence to the ombudsman, who looks at it and then makes a recommendation or ruling. Depending on which ombudsman you use, the decision that's made can be legally binding.

For example, the ombudsman who deals with energy, communications and property complaints can make a recommendation to the trader about what to do. But the financial ombudsman can order a company to do something. This is because it has greater legal powers.

You can still take court action if you're unhappy with the decision, but the court will take the ombudsman's decision into account when it makes a decision.

Traders who offer alternative dispute resolution 

Many traders have their own recognised alternative dispute resolution (ADR) schemes. Some of these schemes cover:

• tour operators that are members of the Association of British Travel Agents
• builders and tradespeople who are members of the Federation of Master Builders
• telephone and internet providers that are members of CISAS or Ombudsman services
• furniture removals companies that are members of the  British Association of Removers
• furniture, home improvement and floor covering suppliers that are members of the  Furniture Ombudsman .

Traders who show Safebuy and Trustmark symbols also offer ADR services.

If your complaint is with a trader who belongs to any of these trade associations, you should contact them directly to find out more about the ADR schemes they offer.

If your complaint is about other goods or services, you should be able to find out if the seller has an ADR scheme by checking their:

• website - try searching for ‘dispute resolution’ or ‘complaints procedure’
• ‘terms and conditions’, either on their website or in any emails or paperwork they’ve sent you. 

If you can’t see anything about ADR, look for phrases like ‘what to do if you’re still unhappy’ or ‘escalating your complaint’. If it says your complaint will be passed on to another organisation, it’s likely to be an ADR scheme.

Contact the seller if you’re still not sure, you should find contact details on their website.

Keep a record of any contact you have with the seller about using ADR. You’ll need it if you end up taking your case to court.  

If you need more help, contact Advice Direct Scotland's consumer service or a Citizens Advice Bureau.  Find out where to get advice . 

Advice Direct Scotland's Consumer Service 

Freephone: 0808 164 6000 Website:  www.consumeradvice.scot

Please tell us more about why our advice didn't help.

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What is Alternative Dispute Resolution?

Familiarize yourself with mediation, arbitration, and a hybrid approach using alternative dispute resolution..

By Katie Shonk — on August 22nd, 2023 / Dispute Resolution

So, you’re stuck in a serious dispute, but you’re desperate to avoid the hassle and expense of a court case. You’ve heard about alternative dispute resolution but are not sure what it entails.

Claim your FREE copy: Dispute Resolution

Discover how to improve your dispute resolution skills in this free report, Dispute Resolution: Working Together Toward Conflict Resolution on the Job and at Home , from Harvard Law School.

What is alternative dispute resolution? Alternative dispute resolution, or ADR, is a process in which a neutral third party—a mediator or arbitrator—helps parties who are embroiled in a dispute come to an agreement. Mediation and arbitration (see also Arbitration vs Mediation and the Conflict Resolution Process in Alternative Dispute Resolution (ADR) ) are types of alternative dispute resolution because they offer an alternative to litigation.

In this article, we describe the two basic types of alternative dispute resolution in addition to introducing a mediation-arbitration hybrid that may be beneficial in resolving certain disputes.

What is mediation?

In mediation, a neutral third party tries to help disputants come to a consensus on their own. Rather than imposing a solution, a professional mediator seeks to assist the conflicting sides in exploring the interests underlying their positions. Working with parties together and sometimes separately, mediators try to help them hammer out a resolution that is sustainable, voluntary, and non-binding.

Mediators can help disputants break an impasse in the following ways, according to Harvard Law School professor emeritus Frank E. A. Sander:

1. Finding additional information that parties were unwilling to share with each other; 2. Overcoming parties’ resistance to communicating and reaching an agreement by presenting offers to both sides; 3. Contributing impartial, specialized expertise; and 4. Brainstorming options to find a resolution that satisfies both parties.

Mediators can be largely facilitative, engaging primarily in shuttle diplomacy and keeping their own views hidden. Other mediators are more evaluative, offering their own knowledge and opinions to guide parties toward agreement. “The most skilled mediators blend the two techniques according to the nature of the problem and the stage of the mediation,” writes Sanders in an article in the Negotiation Briefings newsletter.

What is arbitration?

In arbitration, the other primary form of alternative dispute resolution, a neutral third party serves as a judge who is responsible for resolving the dispute. The arbitrator listens as each side argues its case and presents relevant evidence, then renders a binding decision.

Disputants can negotiate virtually any aspect of the arbitration guidelines, including whether lawyers will be present and which standards of evidence to use. Arbitrators hand down decisions that are usually confidential, that is binding, and that cannot be appealed. Arbitration tends to be more expensive than mediation but less expensive than litigation.

Disputants can give the arbitrator the authority to determine who will win the case and what the award, if any, will be. The following are three specifics types of arbitration that are available to disputants, as described by Sander:

1. Hi-lo arbitration. In hi-lo arbitration, parties attempt to reduce the risk of making extreme decisions by agreeing ahead of time on the upper and lower limits of any monetary award that the arbitrator will grant. This strategy limits the risk to parties who are worried about giving total control over the outcome to an arbitrator.

2. Final-offer, or baseball, arbitration. In final-offer arbitration, which is often referred to as baseball arbitration because of its use in Major League Baseball contract disputes, both parties present a last, best offer to the arbitrator, who must choose one of the two offers. Because final-offer arbitration typically seems risky, it often gives parties incentives to negotiate a reasonable resolution. As a consequence, it increases disputants’ participation in a negotiation while still ensuring a decision will be reached if they are unable to agree. This type of arbitration is often used in labor negotiations for police officers and firefighters because communities cannot tolerate the risk of a strike arising from an impasse with such essential employees—an argument that some make about professional baseball players as well.

3. Tripartite arbitration. In tripartite arbitration, there are three arbitrators, one named by each party and one chosen by both of them. Tripartite arbitration is useful in highly complex cases where the parties want advice from three individuals with differing expertise (such as a lawyer, a businessperson, and a scientist). It is also used in cases in which the parties lack full confidence in a neutral arbitrator and prefer an arbitrator who will forcefully represent their interests.

What is med-arb?

An often-overlooked alternative dispute resolution process is med-arb, a mediation-arbitration hybrid. In med-arb, disputants hire a neutral mediator. If she is unable to resolve the dispute through mediation, she puts on her arbitration hat and renders a decision, explains Sander.

While this blended process ensures that parties will reach a resolution, it brings with it a certain level of risk. Disputants may be reluctant to be candid with a mediator who could later use the information they share against them in the arbitration phase of the process. They may be able to avoid this objection by having different individuals filled the mediation and arbitration roles, though this solution comes requires additional time and cost.

In sum, mediation, arbitration, and med-arb offer compelling alternatives to litigation the next time you are embroiled in a conflict that seems impossible to resolve on your own.

What are your thoughts on alternative dispute resolution? Leave us a comment.

Related Article: Arbitration vs Mediation: Team-building, ADR, and Using Negotiation Examples from Real Life

Alternative Dispute Resolution (ADR) and Negotiations: Negotiating for the Right Mediator

Examples of Alternative Dispute Resolution (ADR): How Mediation Works

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Alternative dispute resolution for consumers

• Department for Business Innovation & Skills

Published 23 June 2015

© Crown copyright 2015

This publication is licensed under the terms of the Open Government Licence v3.0 except where otherwise stated. To view this licence, visit nationalarchives.gov.uk/doc/open-government-licence/version/3 or write to the Information Policy Team, The National Archives, Kew, London TW9 4DU, or email: [email protected] .

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This publication is available at https://www.gov.uk/government/publications/alternative-dispute-resolution-for-consumers/alternative-dispute-resolution-for-consumers

Alternative dispute resolution ( ADR ) refers to ways of resolving disputes between consumers and traders that don’t involve going to court. The government wants to encourage the development of ADR . Better ADR and easier access to it should also be good for all businesses committed to giving their customers the best possible service.

Common forms of ADR are:

• mediation, where an independent third party helps the disputing parties to come to a mutually acceptable outcome
• arbitration, where an independent third party considers the facts and takes a decision that’s often binding on one or both parties

In the UK, there are already several large and well-established ADR schemes in regulated sectors.

These include:

• financial services

Outside the regulated sectors, many businesses are already members of voluntary ADR schemes. But the number taking part in ADR schemes is now likely to increase, with the change in the law.

Alternative Dispute Regulations 2015

Two sets of regulations, in March and June 2015, have been laid in Parliament to implement the European Directive on alternative dispute resolution ( ADR ) in the UK.

• The Alternative Dispute Resolution for Consumer Disputes (Competent Authorities and Information) Regulations 2015
• The Alternative Dispute Resolution for Consumer Disputes (Amendment) Regulations 2015

These regulations, bar the business information requirement, come into force on 9 July 2015. The business information requirement takes effect from 1 October 2015.

The regulations:

• place an information requirement on businesses selling to consumers
• establish competent authorities to certify ADR schemes
• set the standards that ADR scheme applicants must meet in order to achieve certification

In the regulated sectors, the regulators will act as the competent authority. For example:

• Financial Conduct Authority ( FCA )
• Civil Aviation Authority ( CAA )

In all other areas the Secretary of State will be the generic competent authority and has appointed the Chartered Trading Standards Institute ( CTSI ) to carry out these functions on his behalf.

The regulations do not make participation in ADR schemes mandatory for traders. The regulations do require almost all businesses which sell directly to consumers to point the consumer to a certified ADR scheme – where they cannot resolve a dispute in-house – and declare whether or not they intend to use that scheme.

The regulations also require that ADR providers wishing to gain certification must meet certain standards with regard to independence, impartiality, and quality of expertise.

• Guidance for ADR providers on how to become certified ( CTSI website)

Separate guidance: New Business in Focus guidance on alternative dispute resolution ( ADR ) is also available. Consumers can contact the Citizens Advice Consumer Service .

Online dispute resolution

British consumers are increasingly active online, including across national boundaries. The European Regulation on Online Dispute Resolution will help them and other consumers across Europe to get greater access to redress, should something go wrong with goods or services bought in other member states, without having to resort to legal action. This regulation will become law by early January 2016.

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