Understanding Alternative Dispute Resolution in England and Wales

Running Head: BUSINESS AND CORPORATION LAW
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Law Policy and Practice
6/24/2019
Student’s Name

Law Policy and Practice
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Research Question
What one can understand by Alternative Dispute Resolution? Define the main type of ADR in
England and Wales and stipulates advantages and disadvantages of ADRs.
Research Essay
In general, judges and juries decide the matter and resolve the conflicts among the parties in civil
and criminal cases. Nevertheless, it is a long process and often involves many costs. Alternative
Dispute Resolution (hereinafter referred to as ADR) plays an important role here. As the name
implies, it provides an alternative resolution method, which is friendly in comparison to
traditional courts. In other words, this can be stated that ADR is a process in which disputes are
used to be settled without litigations. Litigations are governed by detailed rules, which make the
process complex. One of the primary reason because of that people attracts towards ADR is that
this set up provide opportunities to parties to understand each other’s concern and maintain a
healthy relationship between them. In the presented essay, the discussion will be made on the
main features and the importance of ADR. In addition to this, a different type of ADRs will be
discussed along with their advantages and disadvantages.
It is demonstrated by developments over recent years, that significant judicial and political
support for ADRs is there in England and Wales. The European Commission has identified the
importance of ADR and enacted the mediation Directives. The directive came became applicable
with effect from On 13 June 2008 and now is applicable to all EU members except Denmark1.
UK government also support ADRs as Civil Procedure Rules 1998, the number of methods has
1 Jeroen Chorus, Introduction to Dutch Law (Kluwer Law International B.V. 2016)

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been designed by which ADR can be encouraged. CPR provides that at various stages of
disputes, parties be required to consider whether they can use ADR methods or not. In addition
to this, the government has also pledged to adopt ADR methods in all the appropriate cases that
involve government department. The ADR has attained great importance in recent time where
courts have sanctioned more use of ADR in a number of cases. Moving the discussion towards
the main feature of ADR, this is to state that these features are basic characteristics and presents
in every form of ADR. The very first feature is flexibility. ADR can be used before or in mid of
litigation. It provides great flexibility to parties as they can choose the methods and form as per
their wish2. ADR is not mandatory and in this manner, they remain flexible that whether to go
ahead with traditional litigations or with ADR.
Apart from being flexible, this resolution is quick and inexpensive. If the determination of a
dispute leads to an early stage then it proves very cheap in comparison to litigation. Further, it is
very quick and therefore parties get very fast response and resolution. As mentioned above, it is a
volunteer method hence it is another feature of ADR. Further to say that, ADR is conducted on
without prejudice basis. The outcome of most of the forms of ADR binds to party only at the
moment when an enforceable agreement gets to develop in between them. Until then each party
has the option to withdraw the process and can start a proceeding before the court. Until the
event of settlement, no party can rely on anything that comes out of a process of ADR. ADRs
have the capability to grant commercial solutions. Sometimes, ADR allows parties to take
solutions in those cases where litigations cannot help them. In this manner, it is far clear that
ADRs are very flexible and helping parties of disputes.
2 Hoganlovells.com, ‘Alternative Dispute Resolution in England and Wales’
<https://hoganlovells.com/~/media/hogan-lovells/pdf/client-note-on-adr-in-england-and-wales-2017.pdf?la=en>
accessed 27 June 2019

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Now, the discussion is required to move towards different types of ADR, which is available to
parties. The very firsts and most popular kind of ADR is mediation. In this method, parties to the
dispute engage a third party, neutral mediator. This person helps parties to reach up to a
negotiated agreement and resolve their dispute without any formal litigation/adjudication3. A
mediator establishes a constructive and private environment; manage the discussion, smooth out
personal conflicts and identify various options for the resolution of disputes. In order to grant a
good decision or to achieve his/her objectives, a mediator often seeks views of parties.
Sometimes he/she do so by collective consultation and sometimes by way of individual
discussion. Here this is necessary to state that in those cases where the dispute cannot be
resolved by mediation, parties have the option to switch to courts and they can have their dispute
determined by courts. The mediator cannot enforce his wishes on parties and cannot decide a
matter where the dispute is not able to resolve. Sometimes a clause, which requires a dispute to
be resolved by ADR is missing in a contract. In such a situation, an independent body of ADR
can assist the parties and can convince the same to participate in the process of mediation. As
soon as parties are agreed to resolve the dispute by way of mediation, all other activities start
simultaneously. These activities involve agreeing the length, place and time of mediation,
identification, and nomination of the mediator, Preparation of a summary of facts of the case and
supporting documents and sending the same to each party along with mediator. Representatives
are also one of the important factors of the whole process of mediation. These people represent
parties to the case and should have the authority to settle. These are basically the solicitors of the
parties who play an important role in the whole mediation process. Confirmation that the
mediation process will be without prejudice and confidential is another activity that needs to be
3 Constance E. Bagley, Managers and the Legal Environment: Strategies for Business (Cengage Learning 2018),
830.