Advantages & Disadvantages of ADR

Advantages & Disadvantages of ADR

1. Negotiation

   • Advantages
     • Speed: Often quicker than ordinary courts, meeting at a mutually convenient time.
     • Less formal and therefore less confusing and stressful for parties.
     • Least expensive: Usually the only cost involved is time.
     • Privacy: Parties are confident that the settlement is confidential.
   • Disadvantages
     • Imbalance of power: One party may be acting less voluntarily and may not find this form of ADR appropriate.
     • Lack of legal expertise as no professionals are used in the process.
     • Lack of certainty as the negotiation process doesn't follow the rules of precedent.
     • Confusion of enforceability as one party may feel that the agreement is legally enforcable whilst the other party does not.

2. Conciliation

   • Advantages
     • The conciliator is independent of the parties and has the power to suggest and advise.
     • Expertise: Councilor has expert knowledge.
   • Disadvantages
     • Imbalance of power: One party may be acting less voluntarily and may not find this form of ADR appropriate.

3. Mediation

   • Advantages
     • Speed: Often quicker than ordinary courts, meeting at a mutually convenient time.
     • Less formal and therefore less confusing and stressful for parties.
     • System empowers parties as it does not force an agreement upon them.
     • Process is not expensive as lawyers are discouraged.
     • Expertise: Mediator has trained in the art of mediation.
     • Privacy: Parties are confident that the settlement is confidential.
   • Disadvantages
     • There is an imbalance of power as one party is usually weaker financially or emotionally.
     • Mediators may not be legal experts, if considering a particularly difficult point of law.
     • There is a lack of certainty of the outcome.
     • Unless the parties agree otherwise, the mediation settlement is not binding.

4. Arbitration

   • Advantages
     • Expertise in law leads to fair and speedy decisions.
     • Privacy: Parties are confident that the settlement is confidential.
     • Speed: Often quicker than ordinary courts, meeting at a mutually convenient time.
     • Arbitration has an enforcable award.
     • Less formal and therefore less confusing and stressful for parties.
     • Process is not expensive as lawyers are discouraged.
     • Arbitration frees the courts and is therefore cost saving for the state.
   • Disadvantages
     • There is a lack of legal expertise compared to judges.
     • Many inconsistencies as arbitration is not bound by judicial precedent.
     • Cost may be high in disputes that take a long time.
     • A party may appeal on limited grounds to the high court.
     • There is a lack of trust and understanding for arbitration.

5. Tribunals

   • Advantages
     • A chairperson usually has very high expertise.
     • Tribunals give reasons for there decisions and therefore is understood.
     • Tribunals do not charge fees and is therefore less costly.
     • Less formal and therefore less confusing and stressful for parties.
     • Flexible as tribunals do not operate under strict judicial precedent.
     • Fast as the final hearing is usually completed within a day.
     • Tribunals relieve congestion from the civil court system.
     • Not as highly publicised as court hearings.
   • Disadvantages
     • The chairperson have monopoly influence.
     • Public funding is not available for legal representation; favoring the rich.
     • There are different routes depending on the tribunal, making it complicated.
     • Lack of certainty as the tribunals process doesn't follow the rules of precedent.
     • Cases of public importance may not be publicized.
     • May be formal and too similar to court hearings.

6. Civil Courts

   • Disadvantages
     • There is a lack of technical knowledge in obscure disputes.
     • Lawyers are needed due to the complicated process.
     • Very slow process, and can take longer than 30 weeks to be allocated.
     • There is a lack of flexibility which may be inconvenient for the parties.
     • General costs, such as fees or lawyers.
     • The civil court system is still based on winning a case, so tactful lawyers will always win.
     • publicized and therefore stressful.
   • Advantages
     • Remedies and damages may be ordered legally under the CPR.
     • Legal expertise over many years makes it a fairer decision.
     • Public funding is available for some cases, making it fairer to all.