What is Alternative Dispute Resolution(ADR)?

ADR is an umbrella term which describes any method of resolving disputes between businesses or individuals that does not take place in the civil Courts.   It is run by an independent person or persons (a neutral) or an organisation for which the neutral works and can have a wide range of methods with equally varying degrees of formality

The resolution of disputes is typically achieved faster and at less cost when using ADR either in place of the Courts or as part of the Court administered process.

Sometimes ADR is called private justice, as opposed to public justice available through the courts.  ADR can enable parties to avoid the risks and uncertainties associated with disputes in courts and most of the time has been found to resolve disputes quicker for less cost.

There are different methods of ADR available.  Which works best depends on the time at which ADR is attempted, the issues in conflict and the time available before trial.  Advice should be sought from the ADR provider and/or suitably qualified and experienced lawyers.

It is a consensual process and in every type of ADR both sides must agree to the use of the ADR method and the choice of ADR provider.

In some circumstances the courts in England and Wales will impose costs penalties (sanctions) for not engaging in ADR and the report, published in November 2018, from the Civil Justice Council made clear that the Council expected ADR to become the default approach for all civil court cases in the future, recommendation 20(a) provides:

The  terms  of  claim  documents,  Court  forms,  pre‐action  protocols  and guidance  documents  Already  contain  significant  prompts  towards  ADR but should be reviewed to ensure that:

(a)  there is effectively a presumption that ADR will be attempted in any case which is not otherwise settled

The link to the full Report is here:

https://www.judiciary.uk/wp-content/uploads/2018/12/CJC-ADRWG-Report-FINAL-Dec-2018.pdf

Typical methods of ADR include: arbitration, mediation, neutral evaluation, adjudication and conciliation.

When to use ADR

There is no set time to try ADR.  Experience shows however that the sooner ADR is attempted the sooner costs are reduced and a dispute is resolved.  See research carried out by the EU Parliament and found via this link:

http://www.europarl.europa.eu/document/activities/cont/201105/20110518ATT19592/20110518ATT19592EN.pdf

How to use ADR

Arbitration

An independent third party considers the facts and law and reaches a decision that is binding on all parties to the arbitration.  It starts either from a clause in a contract governing relations between the parties or is entered into by the parties as a way of resolving their dispute because arbitration can be:

  • Quicker;
  • Less expensive especially if conducted online using the DEF Platform which was but with the specific needs of arbitration in mind; and, most important,
  • Confidential, which can help in issues of personal or commercial sensitivity.

Mediation

Mediators help those in dispute communicate about the issues of concern to them, and help participants find solutions that are acceptable to everybody involved.  This leads to a result which can be binding or no result at all.

 

Neutral evaluation

The parties or their lawyers present their cases to a neutral third party (usually an experienced and respected lawyer with expertise in the substantive area of the dispute) who renders a non-binding, reasoned evaluation on the merits of the case.

 

Adjudication

A process by which an independent adjudicator provides the parties with a decision that can resolve the dispute either permanently or on a temporary basis, pending subsequent court determination.

 

Conciliation

Where an independent third party helps the disputing parties to come to a mutually acceptable outcome.

All of the above ADR processes can nevertheless be managed entirely online and we provide one of the few, if not the only Platform which provides online management of an entire dispute from pre-action to final decision and resolution of any costs issues.

 

What is Online Dispute Resolution (ODR)?

The first thing to understand is that ODR is not ADR but can be ADR.

Let me explain: ODR simply refers to a way of resolving disputes that is conducted entirely online.  The key characteristics of ODR are that everything is online from start to finish and no-one meets physically at any time in the process.

ODR can be administered by the civil Courts or it can refer to ADR processes, let us say, mediation in which the final hearing takes place via Skype or by telephone.  Typically though mediations or arbitrations conclude with a physical hearing in rooms hired for the purpose.  This physical meeting can be of enormous advantage particularly in more complex disputes.

 

When to use ODR

There is usually no option about when to use ODR as that is the means whereby the dispute resolution mechanism operates.  Sometimes those using ODR such as complaints handling bodies for retailers, for example, seek to resolve a complaint by early intervention between parties by telephone or postal correspondence.

 

Methods of ODR

By volume of cases handled private ODR is one of the most common methods of resolving disputes in the world.  eBay for example provide a way of resolving disputes between buyers and sellers on their platform which is entirely ODR.

Increasingly civil courts around the world are looking at ODR as a means of resolving lower value, simpler disputes.  A good example is the Civil Resolution Tribunal of the State of British Columbia in Canada (the CRT).  The CRT has been a success and it is now handling a wider range of disputes.  Here is a link to their information site:

https://civilresolutionbc.ca/

In the UK one example is the Claims Portal which is not strictly ODR as it does not resolve cases in the sense of a final determination but instead facilitates the negotiation or settlement of lower value claims for personal injury, industrial disease and other case types.  This is a link to the information site of the Claims Portal:

https://www.claimsportal.org.uk/

The civil courts of England and Wales are looking at developing ODR for low value whiplash and other personal injuries.  There are also plans for lower value contract debt and other disputes to be resolved via ODR to be called Her Majesty’s Online Court (HMOC).  These ideas were looked at in detail in another report by the Civil Justice Council and a link to that report is here:

https://www.judiciary.uk/wp-content/uploads/2015/02/Online-Dispute-Resolution-Final-Web-Version.pdf

Whether the funding will be made found for the HMOC is unclear as at May 2019.