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Alternative Dispute Resolution (ADR)
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J.N.Tait and Associates
specialises in arbitration, mediation and the management of construction disputes.
Mr Tait is a Registered Arbitrator. Conciliator, Mediator and Adjudicator.
Justin Patten is a Solicitor and accredited mediator from the
Academy of Experts and principal at law firm Human Law Mediation. He offers mediation in commercial and
civil disputes primarily focusing on workplace disputes.
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Keating Chambers are one of the country's leading specialist
Chambers in construction and engineering law. They have a lot of construction law on their site, including a
Case Law Update.
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Linklaters Dispute Toolkit
provides a major free resource for companies looking for assistance in arbitration and ADR:
Lovells have set up a major information centre
on their site relating to Arbitration Agreements and the drafting of such agreements.
As well as a great deal of background information, there is an automatic drafting
aid available which can be used either by companies themselves or by other solicitors
who are putting together commercial contracts and need some technical input on this topic.
Lyons Davidson of Bristol, Plymouth, Solihull and New Malden, Surrey,
provide a special site and service called
Lyons Davidson Dispute Resolution & Family Mediation.
The firm works through these two units covering, respective, Dispute Resolution for Businesses & Family Mediation.
There is information on the site about the process of mediation and how it differs from litigation and arbitration.
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Maritime Solicitors Mediation Service (MSMS) is a new initiative by a group of English maritime
law firms. The main objective of MSMS is to promote the use of mediation in the maritime sector to assist
parties to expedite the cost effective resolution of disputes. The MSMS service is intended to cover the
full range of "wet" and "dry" work: for example, collisions, explosions, fires, grounding, sinkings,
charterparty disputes, all matters affecting the carriage of goods by sea and marine insurance including Hull,
Increased Value, War, Mortgagees Interest, Political Risks, Cargo, Charterers liability.
MSMS is developing a growing pool of experienced mediators with specialised maritime expertise.
Mediation-1st is a group of mediation consultants based in
Norwich, and associated with solicitors Leathes Prior. The company offers both "Full" Mediations
(where the Mediator will work with the parties to achieve a
settlement for as long as it takes on the Mediation Day) and "Time Limited" Mediations, which are limited
to three and a half hours. They also offer free seminars to solicitors, accountants, other professions, CABs,
Chambers of Commerce, and other similar bodies.
Mediation Choice has been set up by Paul Holder,
an independent mediation practitioner, trainer, and consultant.
He is available to resolve workplace conflicts and arguments quickly and cost effectively.
Telephone advice and enquiries are provided free of charge. Most disputes are usually resolved in a single
day for a fixed fee. There is information on the site about mediation and about the situations where
mediation is appropriate.
Mediators in East Anglia is a non-profit making
regional organisation of qualified mediators and ADR professionals throughout Cambridgeshire, Essex, Lincolnshire,
Norfolk and Suffolk. Individual members offer their dispute resolution services for a fee (and in certain
cases pro bono - without charge) to the public and to businesses, accepting both private and court referrals.
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Panel of Independent Mediators (PIM Senior Mediators)
offer direct access to some of the most experienced and highly rated independent commercial mediators
practising in the UK. Direct access offers parties involved in commercial disputes an efficient and
highly cost effective mediation service. PIM mediators have a great deal of experience
mediating a wide variety of commercial disputes, including multi-national, multi-party and high
value disputes, and those involving complex issues of fact and law.
The Personal Injury & Mediation Service
is a blog from Personal Injury Mediator Philip Hesketh which provides information on mediation in personal injury
litigation. It is aimed primarily at claimant lawyers and defendant
insurance lawyers. It will also be of assistance to the general public
who may be interested in seeing how mediation works. Philip posts on developments in mediation
and will also be adding negotiation posts as well. The site provides links to other useful mediation
sites and to online resources in this area generally.
Professional Mediation Resolutions Ltd
(PMR) is an independent company specialising in workplace mediation. They provide
mediation and also workplace mediation training.
Property law mediation provided by
Gary Webber, an independent mediator, accredited by the ADR Group. This is part of Gary Webber's
Property Law web site.
Gary has extensive experience, both as
a barrister and as a mediator, in landlord and tenant disputes (commercial and residential) and
disputes involving boundaries, rights of way and other easements, restrictive covenants, property
joint ventures, co-ownership and other areas of property law. He is also trained as a family mediator
and has experience mediating family disputes of various kinds.
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Raworths Mediation Services,
part of Raworths, Solicitors, of Harrogate,
offer information on mediation in Civil and Commercial areas of law.
Resolex is a specialist business dedicated to delivering market
leading tools and services for stakeholder engagement, risk reduction and dispute resolution.
They are driven by the passionate belief that better relationships produce better outcomes.
They help clients create these outcomes through improved relationships amongst colleagues, communities
and commercial partners.
Richard Butler's Mediation Resource is an extensive set of
links to sites with mediation content, mostly organised by country. Each resource listed is given a short summary.
There is also a separate section of
Alternative Dispute Resolution in Europe
which tracks the progress of ADR initiatives in the European Union, a major exercise in itself.
Richard Butler himself is an experienced
mediator specialising in property and other commercial disputes. He also gives courses on dispute resolution.
Ron Sandford Mediation is a company providing mediation,
dispute resolution and conflict avoidance.
Their approach to these disputes is that in coming from the business sector, they
can bring a business perspective to the dispute and the constituents of any
settlement package. All mediators are CEDR Accredited and Registered mediators.
Royal Institution of Chartered Surveyors
(RICS) is a major body in this field. For example, in 1999, the RICS appointed nearly
8000 arbitrators, expert determinators, adjudicators and mediators to
resolve disputes concerning land, property and construction. Over 450 cases
were referred under agricultural legislation, and approximately 600
arbitrators and adjudicators were appointed in building/construction
disputes.
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Scottish Council for International Arbitration (SCIA)
is an independent body committed to the promotion of
arbitration as a method of dispute resolution and to the development of
Scotland as a base for international arbitrations. SCIA will provide
advice and information about how to undertake an arbitration in
Scotland, what advantages can be had by doing so and details about
facilities that are available. If required, details about available arbitrators
in different fields can be provided along with information about nominating bodies.
The membership of SCIA is drawn from a wide range of arbitration
and legal skills representing the diversity of talent and experience available.
Directors and commissioners of SCIA include Court of Session
Judges, Senior Advocates, Arbitrators, Solicitors. The site contains a series of papers
on arbitration in Scotland.
Scottish Mediation Network is a
not for profit organisation working to raise the profile of mediation in Scotland.
They hosted a two day conference at Glasgow University in March 2005.
The Conference (its second) covered mediation of all kinds
and was attended by 300 delegates. They have developed a “Map of Mediation Services”
which shows the growing service business and the types of mediation they offer.
SMN are also facilitating a discussion about regulation of the mediation profession to provide quality
assurance to the users of mediation.
Standing Conference of Mediation Advocates
(SCMA) provides in-house and open training in mediation representation and advocacy for lawyers and others,
negotiation skills, and mediation awareness. It is an accredited provider of advocacy courses to the Bar
Standards Board, ILEX and RICS-DRS Life Long Learning.
Steve Hancox is a former barrister and independent mediator practising in
civil matters, particularly property disputes. He has been involved in numerous cases concerning boundary disputes,
rights of way, easements, nuisance, etc. in the County Court, High Court and in Public Enquiries. He has also been involved
in a very wide range of civil disputes, including partnership, sale of goods, personal injury, employment, intellectual property
and many other civil and family matters from the County Court to the Court of Appeal.
Steve Hindmarsh Ltd train people and organisations
to resolve conflict in the workplace, specialising in training in-house mediator teams.
Steve Hindmarsh is one of the UK’s leading mediation trainers and the organisation also calls upon
a select number of experts in mediation and mediation training who can provide independent
mediation services and expert mediators.
Steve has trained over 1,300 people in skills to mediate or resolve conflict,
working with several of the largest employers in the UK and over 70 organisations at all levels in public,
private and voluntary sector.
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The Mediation Centre is run by solicitors firm
Nowell Meller of Stafford. The centre provides
comprehensive family mediation dealing with children, finance, property and pensions;
civil and commercial mediation offering an alternative to the Courts whilst preserving the business relationship; and
training, consultancy and leadership in the development of Mediation.
Public Funding (free Legal Aid) is available.
Trust Mediation is a not-for-profit national personal
injury mediation service offering fixed price mediations (£1,250 + VAT + £250 admin) by experienced
specialists at locations convenient to those involved. Chairman of Trust Mediation is Sir Henry Brooke,
mediator and former Vice President of the Court of Appeal.
Turner Arbitration Chambers is a group of
individuals drawn from a variety of construction professions.
Individually, and relative to their particular area of expertise, they can offer a wide range of
professional services relating to the resolution of disputes or their avoidance.
As well as information about the members, the site contains a comprehensive Index to the Arbitration Act 1996,
a useful page on the different Modes of Dispute Resolution (itself drawn from the Chartered Institute of Arbitrators,
with their permission) and also a useful set of links in this general area.
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UK Mediation is a major provider of mediators and mediation training.
They operate a national panel of experienced mediators, and an extensive portfolio of mediation training courses.
Mediators can be provided for commercial disputes and for interpersonal disputes.
Mediation training courses are offered to people wishing to qualify as mediators, or simply to
find out more about the subject. Training programmes include short programmes, fully accredited
mediation training and commercial mediation training.
The UK Register of Mediators has been set up as an independent, non-profit making organisation with a
Standards Board made up of mediation professionals.
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workitout is a joint venture between Claimant and Defendant
lawyers committed to the resolution of personal injury and clinical
negligence disputes. This innovative alliance brings with it a
mediation service which is effective and has credibility for both
the injured and the insurers. workitout is a joint venture between Stewarts
solicitors and Berrymans. It appoints qualified Mediators
from both sides of the claims process.
A variety of ADR training programmes are offered by various
organisations, ranging from generic information on ADR to hands-on
workshop type programmes and university level graduate and
postgraduate studies. Here are some of them:
Alternative Dispute Resolution (ADR) was introduced in the 1980s for the
resolution of commercial disputes. The advantages of ADR techniques were
quickly recognised and judges, following the Civil Procedure Rules in 1999,
have discretion to direct the parties to enter into ADR.
Mediation is the most common form of ADR and the service offers the
opportunity for a fresh approach to negotiations and to reduce the cost of
conflict in time and money. Flexibility and confidentiality are important
features.
Arbitration is a binding method of dispute resolution governed by statute.
The appointed arbitrator considers the evidence presented by both parties
and then issues an award, which is enforceable by the courts.
Adjudication is a process for the early, fast, summary, temporarily binding
but interim resolution of disputes, which now applies compulsorily to most
construction contracts.
Private inquires may be instigated to defuse problems encountered by
organisations such as customer complaints, harassment or discrimination
against staff or external threats to investigate services.
Although the use of Alternative Dispute Resolution ("ADR") in its various forms has increased significantly in recent years, ADR has, in fact, been around for many years.
Arbitration has been a traditional alternative to court-based litigation. It has been widely used in commercial disputes, particularly those involving international disputes and matters where technical expertise on the part of the decision maker is important. Arbitrators make decisions which bind the parties to the dispute. Procedures used in arbitration can range from informal to rules which essentially mirror court procedures. The benefits of arbitration include its confidentiality, flexibility, speed and the expertise of many arbitrators. It is usually, but not always, cheaper than court.
Conciliation is an established feature of industrial relations. The conciliator brings the parties together and acts as a facilitator in their discussions. The conciliator is not a decision-maker.
Mediation has emerged in the nineties as an increasingly popular form of dispute resolution. Like conciliation, it involves a third party neutral working with the parties to a dispute to facilitate their negotiations more effectively so that they can arrive at a mutually acceptable settlement.
The mediator will assist the parties in exploring options and measuring the strengths and weaknesses of their respective cases. Mediation can save time and reduce the cost of resolving a dispute, both financial and emotional. Mediation can also assist the parties to re-establish trust and respect and can help prevent damage to ongoing relationships. Mediation works best when it is voluntary, although there are some examples of mandatory mediation projects where parties to a dispute are required to go through a mediation process as a prerequisite to being able to seek adjudication of a dispute by a judge or an arbitrator.
Med-Arb is a process in which the parties proceed through a facilitative mediation process and if the matter does not resolve completely or if certain issues remain unresolved following the mediation process, the mediator is entitled to decide the issues as an arbitrator.
Mini Trial is a process which can be useful to companies in dispute in complex matters. Typically, the senior executives of the companies, with authority to settle, form a panel together with one of our members as a neutral Chair of the panel. The legal representatives for both parties make a presentation of their case in a summary fashion, without witnesses or with a minimal number of witnesses. The presentation should include relevant evidence followed by argument. The executives thereby have the opportunity of assessing the strengths and weaknesses of their case and that of the opponent. Following the presentation, the executives negotiate with each other, with or without the assistance of the neutral, attempting to find a mutually acceptable resolution of the issues. The neutral can function in a facilitative mediation manner to explore the issues, needs and concerns of the parties or alternatively, be evaluative and provide a view of the issues for consideration by the parties. This process is non-binding and without prejudice to legal rights.
Neutral Evaluation is a process by which a neutral hears submissions from the parties on the merits of a case and offers a non-binding evaluation of the likely outcome in the event the matter proceeds to adjudication by a judge or an arbitrator.
Background
The modern roots of ADR are usually traced to a meeting of in-house counsel in the United States about 25 years ago (many of whom were from Fortune 500 companies). The group bemoaned the costs of litigation, the time it took and the fact that the litigants felt excluded from the litigation process.
The attendees agreed among themselves that if they had disputes with each other, they would attempt ADR before resorting to traditional litigation. Representatives of the companies present signed an 'ADR pledge' to indicate their support for ADR over litigation in appropriate circumstances. Out of the meeting, the Center for Public Resources (CPR) was formed, through which the in-house counsel could access neutrals and obtain information about ADR processes. The CPR developed a roster of mediators and arbitrators, many of whom were retired judges and distinguished attorneys.
The book "Getting To Yes", by Roger Fisher, William Ury and Bruce Patton, published by Penguin, is widely regarded as the bible of 'interest-based mediation'. Its authors suggested that disputes need not always be a battle of rights, as they can often be resolved by looking at disputants' underlying interests. Mediators adopted the theories of "Getting To Yes" and began experimenting with interest-based mediation, where a mediator who is an expert in negotiation would help disputants uncover underlying interests in a search for joint mutual gain, and look for a resolution that made more sense to both parties than proceeding to litigation.
Mediation has now become the ADR process of choice. It was seen as a way to develop creative solutions, leave the decisions in the hands of the clients, and maintain on-going business relationships. The ability to craft an outcome that serves the interests of the parties liberates litigants from the risks, uncertainties and loss of control of the outcome that occurs when a dispute is turned over to a third party adjudicator: a judge or an arbitrator.
There are very few types of civil disputes that cannot be mediated. The procedure used can be adapted to suit the needs of the parties and the nature of the dispute. A routine personal injury case can be mediated in half a day; a complex international commercial dispute may take several days and the involvement of more than one mediator.
Settlement rates are high. For example, ADR Chambers which operates in Canada, the UK and internationally, the settlement rate at mediations is about 95%. Satisfaction among lawyers and clients with the mediation process is extremely high. Even where cases do not settle, lawyers and clients tend to agree that the process was beneficial in clarifying and streamlining issues, and understanding positions and underlying interests.
Recent Developments
With the Woolf Reforms, it seems likely that mediation will become a more prominent fixture on the dispute resolution landscape in England and Wales. Civil Procedure Rule 1.4(2)(e) now requires the court, as part of its responsibility to actively manage cases, to encourage the parties to use an ADR procedure if the court considers it appropriate and to facilitate the use of such procedure.
A plethora of dispute resolution services have emerged, in part in response to the anticipated increase in utilisation of mediation by litigants. To date, though, mediation and other alternative dispute resolution services are largely unregulated. In theory, anyone can call themselves a mediator. Although a number of organisations - the Academy of Experts, ADR Chambers, the ADR Group and CEDR - offer widely recognised training courses and "certify" mediators or dispute resolvers, there are many less well known services offering mediation training and standards can vary greatly. The viability of mediation as a credible alternative to litigation is dependent on the ability of parties to be assisted by appropriately trained and experienced third party neutrals. Indeed, it is probably only a matter of time before greater standardisation and regulation of mediation training and services occurs.
Is ADR a Passing Fad?
Although City of London lawyers and others have embraced mediation as a technique to resolve large commercial cases, the cost savings that can be achieved through effective and early use of ADR are such that very few types of dispute cannot be assisted by ADR. There is widespread acceptance both within the legal community and beyond that lawyers and their clients must become aware of the possibilities of mediation and should understand how the process works.
With the opportunity for creative solutions, for a fast and inexpensive resolution that the parties develop and buy into, and for a process that enhances rather than destroys on-going business relationships, mediation is likely to grow rapidly in popularity over the next few years in the UK.
As lawyers become more sophisticated consumers of mediation services, they and their clients will pick and choose mediators best suited for a given dispute and the number and range of competent, qualified mediators will expand.
email delia@venables.co.uk
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