Law

Law

Law

Part A

Resolution in the courts is not the only method of dispute resolution.  If the parties can resolve their own differences then there would be no need to use the court system which would benefit all parties being the claimant, defence and the civil justice service.  Although the court service is a good and fair way of dealing with civil disputes in might not be the ideal way in getting the best result for both the parties.  There are four main ways of alternative dispute resolution (ADR) they are; Negotiation, Mediation, Conciliation and Arbitration (also known as a Formal Settlement Conference or mini-trial).

Mediation is similar to the above method of negotiation with the exception that it also involves a third person.  This person is completely neutral and is called the mediator.  The mediator will consult with both the parties privately at a place and time agreed by everyone.  He/she will take down all key points of both arguments and will attempt to seek 'common ground' between parties which the mediator will discuss conclusively with them together and on a agreed date.  The purpose of the mediator is to  give a basis to both parties from which to begin discussion to form a resolution.  The mediators purpose is not suggest an overall solution to the problem being discussed, but is to develop the areas of discussion and to make sure that the full story has been heard and understood by both sides.  The only way mediation can be successful is if both the parties are wanting an agreement to come out of the process.  This is because the mediator cannot at all force opinion or put pressure on the parties to make a decision; it is the actual parties who make the resolution and only they can implement it.

            Conciliation is very similar to mediation in that it also involves a third person.  This person, called the conciliator is more active in the actual proposition of any resolution.  He or she will also like an mediator; interviewing each party separately and seeking a common ground from which a suitable resolution can be found which is positive to both parties.  Conciliation is an extremely favoured method of dispute resolution within the commercial and industrial sectors alike.  They favour it because it is quick, private and cheap.  Another more important advantage is that unlike a lengthy court case it encourages communication between the parties meaning that if the dispute is between two previously cooperating companies that relationship could be sustained so further business could successfully take place.  The potential quickness in the process also would result in business being able to return to normal without loss of revenue.  This process is very important to companies, so much so that they incorporate it into many of their contracts as an  Scott v Avery Clause.  It means that by which if the parties in the contract agree that if they have any dispute in relation to the contract, they will go to either conciliation or ...