Alternative Dispute Resolution...is it better than litigation?

Watch
Liam28
Badges: 0
Rep:
?
#1
Report Thread starter 3 years ago
#1
Unfortuantely in my business law module this semester I have to write an essay which has for some reason stumpt me and I just don't know where to begin. The question asks me the following:

Using relevant case law, evaluate whether alternative dispute resolution is a better option than court litigation to resolve civil disputes [1,500 words]

Now it seems really simple, naturally one would assume that ADR would be the better option because it allows the parties involved to set their own timetable, to some extent control the costs, maintain confidentiality, maintain future relationships and again to some extent control who hears the case.

The problem is I just cannot find the academic literature that primarily talks about why ADR is a better option, or the literature that I do find focuses on discussing the various different types of ADR and briefly mentions the benefits that I listed above.
There is a respectable amount of literature and case law that I can use to explain why at the very least parties should consider ADR because of imposed costs faced to them if they fail to provide a reasonable explanation as to why they declined to mediate in the first place (I think there was something about an Ungley Order, not sure how relevant that would be); but I do not think this is what I need to talk about, I suppose I could mention this towards the end of the essay but I'm really struggling on where to actually start with this and I'm worried I won't have the academic or case law support to talk about the benefits I listed above in detail and to the extent that the examiner wants.

Cases that I have at the moment are related mainly to the issue of failing to engage in ADR before going to court, for example:

Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576
Dunnett v Railtrack Plc [2002] EWCA Civ 302

Muman v Nagasena [1999] 4 All ER 178

Most of the cases I have found were through an article written by Jonathan Seitler in The Estates Gazette [9 July 2016].

I'm just generally struggling on how to approach this and where to find relevant academic support. Would anyone have any advice on where they would start to tackle this essay, or any academic literature that you think would support in providing an answer to why it may be a better option?

Thank you!
0
reply
Mimir
Badges: 20
Rep:
?
#2
Report 3 years ago
#2
It's mostly a matter of 'common sense' or commercial sense.

Off the top of my head:

ADR can be negotiation, mediation, expert appraisal (t get a neutral evaluation), expert determination, or arbitration. There can also be attempts to settle the matter before trial - a Part 36 Offer.

In Mediation, there is usually an amicable solution, but the decision isn't binding and there is no documentary evidence. However, it is looked on favourably at trial that the parties attempted to settle out of court.

Arbitration requires an arbitrator (sometimes a judge in that capacity). It can destroy business relationships but has a binding decision. There can be documentary evidence but there are certain procedural rules that must be followed. It can also be expensive.

You are only assured a legally correct decision through litigation - there is no reason to set and follow precedents at arbitration or mediation, which is a disadvantage. The result of litigation is also, of course, binding, and extremely expensive considering cost orders.

Arbitration is where an impartial third party decides the outcome o th dispute, goverend by the Arbitration Act (read s1). Interestingly, legal proceedings can be stayed to allow mediation to take place (Konicek Toys Ltd v Banco del Juegos).

You need to consider the speed and cost efficiency for your clients, and how they wish the decision to be made.

Essentially, discover how ADR is carried out, then how litigation is carried out, compare and contrast, then conclude.
0
reply
Liam28
Badges: 0
Rep:
?
#3
Report Thread starter 3 years ago
#3
(Original post by Mimir)
It's mostly a matter of 'common sense' or commercial sense.

Off the top of my head:

ADR can be negotiation, mediation, expert appraisal (t get a neutral evaluation), expert determination, or arbitration. There can also be attempts to settle the matter before trial - a Part 36 Offer.

In Mediation, there is usually an amicable solution, but the decision isn't binding and there is no documentary evidence. However, it is looked on favourably at trial that the parties attempted to settle out of court.

Arbitration requires an arbitrator (sometimes a judge in that capacity). It can destroy business relationships but has a binding decision. There can be documentary evidence but there are certain procedural rules that must be followed. It can also be expensive.

You are only assured a legally correct decision through litigation - there is no reason to set and follow precedents at arbitration or mediation, which is a disadvantage. The result of litigation is also, of course, binding, and extremely expensive considering cost orders.

Arbitration is where an impartial third party decides the outcome o th dispute, goverend by the Arbitration Act (read s1). Interestingly, legal proceedings can be stayed to allow mediation to take place (Konicek Toys Ltd v Banco del Juegos).

You need to consider the speed and cost efficiency for your clients, and how they wish the decision to be made.

Essentially, discover how ADR is carried out, then how litigation is carried out, compare and contrast, then conclude.
Thank you very much for a very detailed response. Those are some good points and I like your recommendation on going through how each are carried out, which essentially then leads one to discover their advantages and disadvantages. Thank you
0
reply
X

Quick Reply

Attached files
Write a reply...
Reply
new posts
Back
to top
Latest
My Feed

See more of what you like on
The Student Room

You can personalise what you see on TSR. Tell us a little about yourself to get started.

Personalise

Are you worried that a cap in student numbers would affect your place at uni?

Yes (5)
71.43%
No (1)
14.29%
Not sure (1)
14.29%

Watched Threads

View All