Explain what is meant by 'ADR', paying particular attention to the following types:
(b) mediation; and
This question is more general than the previous ones, in that it introduces arbitration and asks for a consideration of the process of mediation and conciliation. Detail is necessarily less, but the question still requires a substantial understanding of the processes. The following structure might prove satisfactory:
• Consider the operation of arbitration as compared to the ordinary courts (refer specifically to the Arbitration Act 1996);
• Consider the distinction between mediation and conciliation, as well as detailing how and when they are likely to be used;
• Conclude by placing these various ADR mechanisms within the framework of the general legal system.
It is generally recognised that the formal atmosphere of the ordinary courts is not necessarily the most appropriate one in which to determine all disputes which might need adjudication. In recognition of this fact, various alternatives have been developed specifically to avoid the perceived shortcomings of court procedure.
The first and oldest of these alternative procedures is arbitration. Arbitration is the procedure whereby parties in dispute refer the issue under contention to a third party for resolution, rather than institute legal proceedings in the courts. This prac¬tice is well established in commerce and industry; its legal effectiveness has long been recognised by the court. In contemporary business usage, it is a matter of common practice for commercial contracts to contain express clauses referring any future disputes to arbitration.
Arbitration proceedings are now governed by the Arbitration Act 1996, which repeals previous legislation. This Act (which is dealt with in detail in Question 43, above) significantly alters the relationship between the parties, the arbitrator and...