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Alternate Dispute Resolution Notes

LPC Law Notes > Civil Litigation Notes

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A more recent version of these Alternate Dispute Resolution notes – written by Cambridge And Oxilp And College Of Law students – is available here.

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Arbitration Arbitration vs Litigation vs Mediation Arbitration

Litigation

Mediation

Definition

The procedure by which disputes are resolved by an independent third party.

The procedure of going to court to settle a dispute in an adversarial process.

The process whereby an independent third party facilitates negotiations.

Decision

Binding and can be legally correct (ss.45, 52 & 69).

Binding and legally correct.

Made by the parties mediator has no input.

Rules

Mandatory rules listed in Schedule 1

Covered by the CPR.

None unless decided by parties.

Enforcement Enforceable decisions (s.66) as well as international enforcement (New York Convention)

Enforceable (CPR 70-73)

If agreement is recorded in a Consent Order it can be enforceable.

Other Advantages

- Choose the arbitrator often a specialist or expert

- Rules of precedent
= predictability

- Cheaper if settlement is reached

- Choose the procedural rules

- Judge considered documentary evidence and experts/witnesses

- Quicker, flexible and informal

- Private hearing and confidentiality (avoids publicity)
- Commercial and non-legal solutions Other Disadvantag es

- Legally binding and - Commercial solution correct decision
- Collaborative solution
- Confidentiality

- Costly (arbitrator, venue, agreement negotiation, court applications etc.)

- Public trial

- Cannot join third parties without consent

- Costly and time consuming

- Lack of interim judgments e.g. summary judgments

- Non-adversarial; win-win result

- No control over procedure or rules

- Increase costs if unsuccessful
- No guaranteed solution or engagement in process

- Mediator may not be an expert
- Adversarial process
- damages relationships

Responding to Claim Forms If the claimant has filed a claim form then the defendant should file an acknowledgement of service so that the claimant cannot apply for judgment in

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