Alternative methods of dispute resolution — common mistakes

When evaluating ADR, always compare it directly with litigation. Use comparative language like 'whereas the courts are public, ADR methods such as mediation are private'. For higher marks, differentiate between the ADR methods themselves, explaining why arbitration might be suitable for a commercial dispute but conciliation is better for an employment issue.

This is a common misconception. While both involve a neutral third party, their roles differ. A mediator is a facilitator who helps the parties find their own solution and will not offer an opinion. A conciliator is more proactive and evaluative; they can suggest potential solutions and offer their view on the strengths and weaknesses of each side's case.

No, this is incorrect. The decision of an arbitrator, known as an 'award', is legally binding on the parties. It has the same legal force as a court judgment and can be enforced by the courts if one party fails to comply. This is a key feature that distinguishes arbitration from mediation and conciliation, whose outcomes are not binding unless a separate settlement agreement is signed.

Not necessarily. While ADR has many advantages like cost, speed, and privacy, it is not suitable for all cases. For example, if a party needs to establish a legal precedent that will bind future cases, a court judgment is required. ADR may also be inappropriate if there is a significant imbalance of power between the parties, or if one party is acting in bad faith and is not genuinely seeking a resolution. Furthermore, court action may be necessary if an injunction or other urgent remedy is needed.

No, a court cannot compel parties to use ADR as it would be an obstruction to their right of access to a court, which is protected by Article 6 of the European Convention on Human Rights. However, the courts can and do strongly encourage it. As established in Halsey v Milton Keynes NHS Trust, a court can penalise a party who unreasonably refuses to consider or engage in ADR by making an adverse costs order against them, even if that party ultimately wins the case.