Dispute resolution: negotiation and mediation

Dispute Resolution Frameworks

Negotiation (5 marks)

• Negotiation involves direct communication between two parties.
• Negotiation arises voluntarily by the parties. It is used in low-key disputes such as neighbor disputes, disputes between home-owner and tradesmen and disputes between companies. Negotiation involves the two parties and in some cases their representation, though the use of lawyers in discourages as there will be no costs. The parties will either meet face-to-face or through continued communication via phone, text or email. There is no fixed procedure of how the process of negotiation will occur.
• The outcome, once reached will not be legally enforceable but the parties can make it so. There are no appeal routes with negotiation.

Mediation (5 marks)

• Mediation involves an independent third party to act as a messenger between the disputing parties.
• Mediation can arise through a voluntary agreement or statutory requirement for example under the Family Law ACT 1996 requires all divorcing couples to try mediation before going to court. There are many services which provide mediation services, for example the National Association of Family Mediation and Conciliation Services will deal with family disputes. International Resolution Europe Ltd and the Centre for Dispute Resolution will both deal with commercial dispute between companies. The mediator remains neutral. They will be qualified in mediation and normally the area of dispute. The procedure is informal and will take place in a private setting. The mediator will speak with parties individually first and then will act as a messenger between them to facilitate reaching a solution.
• If an agreement is reached it will not be enforceable unless the parties agree to make it so. There are no appeal rights.

Conciliation (5 marks)

• Conciliation involves an independent third party to act as a messenger between the disputing parties and make suggestions as to how they might resolve their dispute.
• Conciliation is a voluntary process. Conciliation services are provided usually for disputes in industrial and commercial law. For example ACAS, the Royal Mail used this service when a dispute arose between the company and employees this led to strike action successfully being averted. The DCS also provides a conciliations service for disabled people. The conciliator is qualified in conciliation and usually the area of dispute. He/she will use this experience to make suggestions of how parties can resolve their dispute but will remain neutral throughout. The procedure will be in an informal and private setting agreed by the parties.
• The parties have control over whether or not an agreement is reached and it will not be enforceable unless they agree to make it so. There are no appeal rights.

Arbitration (10 marks)

• Arbitration is where parties voluntarily submit their dispute to judgement of a neutral third party other than a judge.
• Arbitration can arise through an agreement in writing between the parties, or it can be as a result of a Scott v Avery clause in a contract. This makes it a requirement that arbitration is used to resolve disputes before any case will be accepted in court. Arbitration can be used for commercial disputes, for example using ACAS or the Chartered Institution of Arbitrators services. Consumer disputes may also be dealt with such as disputes over package holidays which may be dealt with by ABTA. Where the case involves a point of law, a lawyer may be used to arbitrate. Arbitration is governed by the Arbitration ACt 1996, under s15 the parties can agree who they want to be the arbitration. This could be a panel of 2 or 3 or a sole arbitrator. Arbitrators will be required to have some legal and specialist knowledge. Contracts may stipulate that a specific arbitrator service is to be used, for example ACAS or ABTA or if a point of lawe is involved, parties may use a lawyer to arbitrate. Once arbitration has been decided upon, there is no fixed procedure. However, a time and place convenient to both parties will be organized in consultation with the arbitrator. Both parties will put their arguments to the arbitrator to decide the outcome, this could be a hearing where witnesses may be called or through 'paper' arbitration.
• The outcome is called an 'award' and will be binding on the parties, making it enforceable in court if necessary. Appeals regarding the award are limited to where there is serious irregularity in the proceedings (s68 AA 1996), or where there is a point of law issue (s69 AA 1996).

Explain Tribunals (10 marks)