A more recent version of these Adr Advantages And Disadvantages notes – written by City Law School students – is available here.
The following is a more accessble plain text extract of the PDF sample above, taken from our Alternative Dispute Resolution Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:
ALTERNATIVE DISPUTE RESOLUTION??????Advantages to ADR over litigation Lower cost Settlement reached far quicker Parties control the process Choice of forum - parties can choose between arbitration, mediation, negotiation, etc. Wide range of issues may be considered that would not be easy to categorise in legal terms Wider range of potential outcome - not limited by powers of the court, the parties can agree to any settlement terms Flexible processes - many ADR processes involve the parties deciding how they wish to do it Flexible rules on evidence and disclosure Private and confidential process and settlement Problem solving approach - rather than focussing on past events and apportioning blame, ADR approach involves focusing on solving the dispute and making both parties happy Reduction of risk where bring a weak case - some ADR processes are not win-lose like litigation Greater client satisfaction Can retain the pre-existing relationship of the parties???Disadvantages to ADR over litigation Increases costs if unsuccessful Additional delay if unsuccessful Possible reduction of outcome - certain ADR processes involve negotiation, concession and/or compromise, and therefore the overall outcome may be less than in court Lack of clear and public finding of the victor Loss of potential procedural steps, e.g. summary judgment, interim injunctions, security of costs, etc Loss of potential advantage of evidence and disclosure rules Attempting to use ADR can confuse the process
ADR and the CPR The Pre-Action protocols and the Practice Direction PreAction Conduct require the consideration of ADR. The steps required are:
? To consider ADR and provide evidence of this;
? Exchange information
? Detailed letter before claim
? Detailed response
? To state to the court whether the PD has been complied with
ADR and the Courts Allocation questionnaires require parties to state whether they are willing to use ADR and, if not, their reasons. The court can investigate these reasons. The court CANNOT force a party to use ADR as that is in violation of Art 6 ECHR. The courts can only encourage ADR by using their case management powers to order a stay in proceedings for the parties to use ADR. This can be done with or without the agreement of the parties. Staying Proceedings A stay will usually last a month, and once ordered requires no further action in the proceedings. The judge should be kept informed of how ADR is progressing, and the stay can be ended or extended. Some court guides, e.g. the Admiralty Commercial Courts Guide and Chancery Guide encourage the use of ADR. The court can penalise a party in costs for unreasonably refusing to use ADR. The court will be more robust in encouraging ADR in publically funded cases.
Contractual ADR Clauses A clause must be sufficiently clear to be enforceable. If it is, the court may uphold it and order to stay the proceedings. Factors for ordering a stay:
? Extent that parties complied with preaction protocol
? Whether dispute suitable for ADR
? Cost of ADR vs cost of litigation
? Whether stay in accord with CPR r1.1 Damages can be awarded for breach of an ADR clause.
Buy the full version of these notes or essay plans and more in our Alternative Dispute Resolution Notes.