Lecture notes
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- Module
- Public Law
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- University Of Law (ULaw)
Lecture notes of 6 pages for the course Public Law at ULaw (LPP)
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Alternate dispute resolution , eg. The advantages and disadvantages of ADR, faith basedmediation
Research question : To which extent is the use of Arbitration a more effective way of resolving civil
disputes than going to a civil court?
Intro:
In the following, I will be exploring what Alternative dispute resolution (ADR) is, stating the different
types and how Arbitration may be more effective than using the traditional civil court systems in the
UK in order to resolve civil disputes , including amongst private family matters, consumers and
businesses. I will be stating the advantages of arbitration and explaining why arbitration and some of
the other mechanisms, such as mediation/conciliation, may be better to use over the traditional
court system. I will also provide the disadvantages and explain why the court system is better to use
over Arbitration, regardless of any other factors.
I will also be incorporating the rising topic of how people of different religions and faiths have turned
to faith based mediation in order to solve disputes between them and how this may be another
alternative of going to court for some people . Some of the main issues being raised with the
traditional court process is the time and the cost involved as sometimes court fees could amount to
over £10,000 ,which is an extremely large amount that many people are unable to afford and
sometimes the cost of going to court is more than what you are actually claiming for. It could also
take up to several months of court proceedings and hearings for there to be an agreement .Using
processes of ADR such as arbitration and forms of mediation helps reduce these issues as it saves
time and is less expensive, along with protecting relationships .
The CPR glossary defines Alternate Dispute Resolution broadly as ‘a collective description of
methods of resolving disputes otherwise than through the normal trial process’ 1. ADR helps to solve
many issues and complaints without the need to go to court, damages and compensation may also
be awarded. Recently the use of ADR and arbitration is increasing because of the costs and the time
consuming civil court process , which may add in more pressure and stress for parties and is one of
the main reasons why people may look at alternative methods of court , such as arbitration or even
faith based mediation in communities. Even though , on some occasions the use of arbitration is also
used to help settle disputes alongside the court system. Sometimes it is also possible to go through
the processes of mediation or arbitration even after a court trial , this practice is an option and can
also work alongside the court system .
The most common types of ADR,are conciliation and mediation, arbitration and adjudication.
Arbitration2 is slightly more professional and it involves using an independent arbitrator to make
decisions about the matter , which will also be legally binding and the result of this would have to be
agreed upon. Arbitration is voluntary and both parties will have to accept and agree on the decision ,
as the arbitrator will make a firm decision based upon all the evidence and proof provided , as well
as any eye witness statements .The arbitrators role will be similar to the role of a judge in court and
any decision made will be legally binding .
1
CPR glossary https://www.justice.gov.uk/courts/procedure-rules/civil/glossary
2
https://uk.practicallaw.thomsonreuters.com/4-502-1378?
transitionType=Default&contextData=(sc.Default)&firstPage=true&bhcp=1
, Arbitration is regulated and controlled by the Arbitration act 19963 and one of the most important
part is ‘to obtain the fair resolution of disputes by an impartial tribunal without unnecessary delay or
expense’. if there are to be three arbitrators in a two party dispute, each party will typically select
one arbitrator. The nominees or the arbitral institution will select a third arbitrator to act as chair.
Conciliation :This involves a mediator to facilitate communication between the two parties having
the dispute, mainly between consumers and businesses , with the aim of achieving a settlement or
resolution. It is often free to use and used in consumer cases , as its less formal than any of the other
types of ADR.
Mediation- similar to conciliation, a mediator is the middle person and will try to help solve the
dispute between the two parties and will consider the best way to go around solving the issue . The
mediator does not necessarily make any decisions but will help to find a solution. Many faiths and
religions such as Islam have practiced in faith based mediation in order to solve issues between
parties and to help find solutions .
The obvious reason behind religious mediation would be that it would make it more legitimate and
digestible for people who come from different backgrounds. The language is that used by
communities themselves., and such terminology can make ideas come alive and talk directly to the
values and ideas of a group of people. At the same time, using religious resources could be risky,
because authentic interpretations of religious texts are only possible from within the community in
question. The more a person is an ‘outsider’ from a religious community, the more he would be
unaware of the religious views shared by the parties having the disputes
So a mediator with a Christian background can use biblical language to explain and legitimise an idea
to fellow Christians, but the trainer should avoid this approach when talking to other religious
groups. Faith based mediation would not always be the ideal method to use , as it involves a small
minority of religious backgrounds and other parties may seem alienated , so this form of mediation
would only be successful if all parties shared the same beliefs and views. This would be more
common amongst private family and community matters and not for commercial disputes.
All three mechanisms of ADR have huge similarities between them and are all equally as effective, as
they can be used in many different situations and scenarios such as between consumers and
businesses or in private family matters . However , the most formal type is arbitration , as it contains
a tribunal and most commercial disputes can be solved efficiently by using arbitration . Mediation
and conciliation are less formal and therefore used less , as they solely focus on communication
between parties in order to reach an agreement , which can be used heavily for family and personal
matters. Faith based mediation has also been used recently amongst people of different faiths and
religions, and has helped communities solve their differences.
The Workplace Employment Relations Survey 2011 4 found that 17% of workplaces that had formal
employee grievances had used mediation. A 2015 CIPD survey of their members reported that
inhouse mediation was used in 24% of organisations.
There are many advantages of using Arbitration over using the civil court process such as : it is much
cheaper and cost efficient of having a arbitrator ,for example, in order to settle a legal dispute
3
https://www.legislation.gov.uk/ukpga/1996/23/contents
4
(Cipd.co.uk, 2020) <https://www.cipd.co.uk/Images/workplace-mediation-transforming-the-culture-of-conflict-
management_2015_tcm18-15587.pdf> accessed 27 July 2020.
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