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.
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ADR resources
Law Society guidance on how to comply with the EU Directive on Consumer ADR. This page contains advice on how to comply with the EU Directive on consumer ADR. It provides a description of the requirements; suggested text to be included in letters at the end of first-tier complaints; information for “online traders”; and frequently asked questions.
Academy of Experts is the Professional Body for Expert Witnesses both in the United Kingdom and around the world. Its Register of Qualified Dispute Resolvers is an invaluable resource for parties and their Lawyers seeking a swift and agreeable resolution to their dispute. They provide Mediation Training.
Adjudication.co.uk is a company providing adjudication services and information. The site contains information on Adjudication, a Glossary of the terms used, information on Decided Cases on adjudication (although not very recent ones), links to the relevant Legislation and articles and papers.
Adjudication Society is a not-for-profit Society promoting resolution of construction disputes by means of adjudication. It was formed so that the construction industry might benefit from the body of experience and case law associated with the introduction of the Housing Grants, Construction and Regeneration Act 1996, the growth in adjudication by means of Expert Determination and Dispute Boards and the increasing popularity of the New Engineering Contract. The Society’s purpose is to encourage and develop adjudication as a method of resolving construction disputes (without denouncing other procedures, such as arbitration and conciliation) and to provide a regular and informal forum at which adjudication problems and practices may be discussed. There are a number of branches around the country which put on meetings and events. There are also a variety of papers, talks newsletters and case reports on the site.
Alban Resolution Centre covers Mediations in a number of areas including Personal Injury, Family, Ancillary Relief, Commercial/Contract disputes, Employment/Workplace mediation and Property/Neighbourhood disputes. They operate in association with St Albans Chambers, a medium sized long established set committed to providing a high level of service across the South East.
Alternative Dispute Resolution Group (ADRg) is acknowledged nationally and internationally as a leading authority in mediation and other dispute resolution techniques. They have provided a quality service for 20 years. Their core service areas include:
1. Teach – a broad programme of dispute resolution training courses, from mediator accreditation to advanced dispute resolution courses.
2. Talk – consultancy and bespoke solutions for organisations requiring tailored dispute resolution services.
3. Resolve – cost-effective, professional dispute resolution for business, the workplace or the family.
Alternative Dispute Resolution Services (ADRS) is an ADR Agency, based in Newcastle, supplying mediators and arbitrators. The group offers cost effective and timely resolution of disputes at fixed prices using ADR methods such as mediation or arbitration, and avoiding the need to go to court. They can provide mediators or arbitrators for any size or type of dispute but make a special feature of low to medium value disputes with reasonably priced services.
The Association of Northern Mediators, working across northern England with an office in Leeds, promotes the use of mediation throughout the region. It provides at no cost, lists of over 100 Mediators divided up into local groupings. The user can search by Town, County or Specialisation.
Atkin Chambers have specialised in construction law and engineering law for over 40 years. They also cover energy, information technology, commercial obligations and professional negligence. Both barristers and door tenants of Atkin Chambers accept appointments as arbitrators, mediators and adjudicators.
Atkinson Law provides information in construction related to arbitration. The author, Daniel Atkinson is a chartered Engineer as well as a Barrister (non-practising) and a Director of James R Knowles Limited. He is an Adjudicator and on the committee of the Institute of Civil Engineers and a CEDR Registered Mediator. The website has been prepared for those in the construction industry to keep up to date with developments in arbitration both in UK and abroad, in adjudication and in mediation.
Catalyst Mediation, based in Glasgow, is unusual in that the 13 mediators on the panel have direct experience, often in senior positions, in over 80 commercial, professional, legal, voluntary and public sectors. In many mediations it can help if the mediators have knowledge of the environment and language of the sector in which the dispute has arisen. There is useful background information on the site about mediation and particularly about mediation in Scotland.
Centre for Effective Dispute Resolution (CEDR) is one of the leading international bodies in the field of Alternative Dispute Resolution, dispute management and conflict prevention. It was launched in 1990 with the backing of the CBI. It aims to be the flagship for raising the understanding, profile and use of Alternative Dispute Resolution, both in the UK and Internationally.
Centre for Justice is a dispute resolution service for individuals, for business and for the public sector. It is an independent service which resolves all types of dispute quickly and cost efficiently. The service is not for profit. It is a modern, reliable and accessible alternative to mediation and the courts. It was set up by leading London lawyers to meet the need for the public, business and government to resolve their disputes quickly, reliably and cost efficiently. Working with representatives of the judiciary, government, commerce, industry and the third sector, they have developed a new approach to dispute resolution, which dramatically reduces the stress, cost and delay involved. It puts the needs and concerns of those in dispute firmly at the centre of the process.
The Chartered Institute of Arbitrators (CIArb) is the professional home for consumer and commercial arbitrators and practitioners of alternative forms of dispute resolution. The services offered also include mediation. The Institute’s global reach covers a wide range of sectors including: law, construction, shipping, banking, insurance, commodities, agriculture, accountancy, medicine and sport. Through the provision of training and continuing professional development, the CIArb maintains an assured global standard of education. In addition, the Institute conducts “Dispute Resolution Services” delivering bespoke schemes for consumer and business-to-business transactions. The schemes offer a cost-effective and timely settlement of disputes. The Institute provides an information centre for members, publications, access to the members’ area of the website, hearing and meeting rooms.
Chris Makin is a forensic accountant who, as well as issues of partnership, valuations, business interruption and the like (as one would expect of a chartered accountant) has mediated disputes on topics ranging from housing disrepair to expensive motor cars. His site contains straightforward guidance on when and when not to mediate, how to prepare, what happens on the day, the facilities needed, his fee structure, and a useful set of FAQs. There is also a section on the many occasions on which judges have encouraged parties to mediate, and pointed out the perils of refusing to practise ADR.
Civil Mediation Council represents the common interests of mediation providers and mediators in promoting mediation.
CMP Resolutions (formerly Conflict Management Plus) is a leading workplace dispute resolution services and training provider working in the UK and Europe. Founded in 1989 by industry expert John Crawley, CMP were the developers of the industry standard OCR Certificate in Mediation Skills and the Interactive Mediation™ technique. They deliver in-house and public training courses in mediation, investigation skills, conflict management, neutral assessment and stress management. Their workplace dispute resolution service offers independent, professional Mediators, Investigators and Neutral Assessors. They can provide on-site support within days, and complete mediations within 10 days of referral and investigations within 30 days. They have trained over 8000 people in mediation and investigation techniques.
College of Mediators previously known as UKCFM, has been developing and monitoring best practice standards in mediation since 1996. As the only independent individual professional membership body for mediators, College of Mediators, members are required to meet specified levels of initial training, supervision and Continuing Professional Development to ensure they offer good quality mediation services to the public. College mediators come from a wide range of backgrounds and offer mediation to meet a wide range of needs.
Consensus Mediation, run by solicitor Maggie Kennedy, provides:
- A bullet point guide to how and why mediation works in more than 80% of cases
- A collection of articles written by Consensus Panel members and guests.
- ADR Glossary explaining common terms and acronyms.
- Case Studies related to cases settled successfully using traditional and online mediation.
- Extracts from the Civil Procedure Rules that relate to ADR.
Core Solutions, based in Edinburgh, provides a comprehensive service for those involved in the commercial, business, public and professional services sectors, who wish to use highly trained, professional mediators or facilitators to assist them to manage and resolve their disputes or differences quickly and effectively. There is an extensive panel of senior lawyers and professionals from other disciplines.CPD Seminars is one of Ireland’s most established training bodies in mediation & ADR offering Continuing Professional Development in these domains. There is also extensive information on the site, with articles, news items and a blog, on Mediation & Aleternative Dispute Resolution in Ireland.DirectoryofMediators.com is a local and global directory of mediators. The directory includes mediators in Commercial, Family, Real Estate, Workplace, Divorce, Insurance and many other categories. There is a membership system in place and members can add or develop their entries as they wish.
Effective Dispute Solutions Limited is a Midlands mediation firm covering the whole of the UK with a national panel of experienced mediators covering all sectors of dispute, specialising in commercial mediation, workplace and employment mediation, family mediation, community mediation, arbitration, adjudication, coaching, conciliation, early neutral evaluation, expert determination & med arb.
Expedite Resolution provide specialist mediation and dispute resolution services in the claims and insurance sector. Their highly independent, specialist mediators, adjudicators and arbitrators work with people and organisations bringing and defending claims to achieve settlement quickly and at the right price.
Human Law Mediation handles workplace disputes, helping employers avoid costly court cases and working with managers to resolve staff discipline and performance issues. Mediation Training. The service is run by solicitor Justin Patten. The site includes a lot of useful background information about mediation in general, why it is useful and how it compares to other forms of alternative dispute resolution. He also provides half-day briefing session for lawyers and provides an e-zine to which lawyers and business people can subscribe for free (you can do this from the site). In addition it offers 2 free Downloads – Negotiating for Excellent Results and Keeping Away from Employment Tribunals and Court Room Battles.
In Place of Strife, the Mediation Chambers, provides and manages the services of some of the most experienced and effective mediators currently practising in the UK and elsewhere. Chambers members have a wide range of specialist skills underlying their mediation experience and our experienced clerks will be able to advise as to the Chambers member or further recommended mediator who is best suited to your case.
InterMedation is a City-based commercial dispute prevention and resolution organisation with a national network of around 150 accredited mediators, evaluators and other neutral professionals. The company provides experienced mediators, neutral experts, facilitators and adjudicators for disputes including: insurance; shipping; healthcare/clinical; personal injury; professional negligence; construction and major projects as well as general commercial areas. They also provide dispute prevention and resolution consultancy and awareness training in a range of dispute resolution methods. They operate insurance market ADR Clinics for Lloyds of London and the International Underwriting Association.
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.
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. This is free but you have to register for this.
Maritime Solicitors Mediation Service (MSMS) is an 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.
Mediata is the specialist commercial mediation service delivered by Mark Manley, one of the leading commercial mediators in the UK. He has nearly 20 years’ experience as a commercial mediator and has handled more than 450 commercial mediations. He is a registered and accredited mediator with CEDR Solve, ADR Group, ADR Chambers, the Association of Northern Mediators and Early Resolutions, and is a panel Mediator for Sports Resolutions.
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. Most workplace disputes are usually resolved in a single day for a fixed fee. Paul is also an accredited family mediator who is skilled in helping those separating and divorcing with child contact arrangements and financial settlements in a sensitive and practical way. Telephone advice and enquiries are provided free of charge.
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.
Modria builds online dispute resolution systems. Companies use Modria’s software to resolve customer issues quickly and fairly, which saves support costs and improves customer loyalty. Modria is a spin off from eBay/PayPal, with a perpetual license to the Community Court platform that powers ebaycourt.com and paypal-court.com. The Modria platform is the leading online dispute resolution system in the world, enabling businesses and government agencies of any size to resolve customer problems swiftly and fairly. Modria has recently announced that it has closed a $5 million dollar Series A investment round led by Foundry Group. There is a blog on these topics ontheir site.
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.
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.
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.
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.
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.
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.
An introduction to ADR by Graeme Mew
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.
