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TitleWhy use ADR?
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Table of Contents
                            Why use ADR?
Before you start - what are your alternatives?
Reasons for using ADR
Risks in using ADR
The cost of ADR
Three important points to consider
Jargon buster
                        
Document Text Contents
Page 1

Why use ADR? Pros & cons

Thinking about ADR?
This leaflet is for you if you’ve heard about alternative dispute resolution
(ADR) and are wondering whether to use it to try and resolve a dispute.

It will help you to understand:

• The advantages of ADR
• The risks in using ADR
• What the alternatives are

We try to explain any technical or unusual language as we go along. But
you may also find it useful to check out the jargon buster at the back
of this leaflet where we also explain some of the terms you may come
across when looking into ADR.

You may also be interested in our leaflet ‘Finding and choosing a
mediator’ which looks at one particular type of ADR – mediation.

ASA Guide

Note: Fees information in these leaflets applies to England and Wales only.

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Why use ADR? Pros & cons - ASA guide2

Contents

Before you start - what are your alternatives? ............... 3

Reasons for using ADR .................................................. 4

Risks in using ADR ........................................................ 7

The cost of ADR ............................................................ 9

Three important points to consider ............................. 11

Jargon buster ............................................................... 13

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Why use ADR? Pros & cons - ASA guide 7

A full investigation

Ombudsmen have the power to investigate problems in depth, and,
like courts, can require information to be provided by the organisation
complained about. Unlike courts, they are free to the user. Poorly
performing local authorities and government departments can be
identified by the public services ombudsmen. If your problem is a
symptom of much wider problems with a particular council or public
body, then the ombudsman can investigate one complaint, and
suggest wide-ranging changes in practice to make things better for
everyone.

But ombudsmen won’t necessarily take on your complaint to
investigate. They might decide that it isn’t something they can consider
or that another type of resolution would be more appropriate, such
as going to court.

In addition, some ADR options provide a remedy where there are few
other practical, affordable options; this could include issues such as
neighbour disputes about noise or low-level anti-social behaviour,
or complaints to the Financial Ombudsman Service about financial
service providers.

Risks in using ADR

There are some situations when ADR may not be appropriate, and
may even be risky for one of the parties. It is a good idea to get some
independent legal advice about this. It is important for solicitors and
legal advisers to use their professional judgement in each case, but
these are some of the factors you should think about:

Power differences

There may be an imbalance of power between the parties, which
could make face-to-face mediation unfair. This could include family
or neighbour mediation where there has been violence or the threat of
violence; or mediation between an individual and a large organisation
such as a local authority or company, where the size and resources
of the organisation could put the individual at a disadvantage.
This doesn’t always mean that mediation is inappropriate, but it’s
something to consider.

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Why use ADR? Pros & cons - ASA guide8

Urgency

There may be an urgent need (for example if you are threatened
with being evicted or losing your home) which requires an immediate
legal remedy.

Reluctant opponent

Mediation requires both parties to be willing to give it a try, so if the
other side is not willing to mediate, you might need to go to court
instead.

No precedent

Agreements reached in mediation do not act as precedents in future
cases. They are usually private and confidential. If you need to
establish a legal point that other people can rely on, you may need
to go to court.

No ruling on legal rights and entitlements

You cannot get a ruling on your legal rights, including discrimination
and human rights, in ADR processes. You can still resolve a dispute
about these issues, but you won’t get a decision about whether or
not the law has been broken.

Can take a long time

Ombudsmen investigations can be very slow – even up to a year or
more for an investigation.

Lower compensation amounts

Although ombudsmen can make compensation awards, they are
often lower than is likely to be achieved in court. Research shows
that in mediation of small claims cases, settlement amounts tend
to be lower than amounts claimed. If you need a significant sum of
money in compensation, then you might get a higher award through
the court.

Binding decisions

Arbitration, and often adjudication, are processes that result in legally
binding decisions. This means that you cannot reject the decision if
you don’t like it, and you can’t take the claim to court instead.

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Why use ADR? Pros & cons - ASA guide14

Expert determination In expert determination, an independent third party
considers the claims made by each side and issues a
binding decision. The third party is usually an expert in
the subject of the dispute and is chosen by the parties,
who agree at the outset to be bound by the expert’s
decision. It can be most suitable for determining
technical aspects of a complex dispute.

Litigation Litigation usually means using the courts or
tribunals. It can also apply to what goes on before
a case goes to court, such as negotiation between
solicitors representing parties in dispute.

Mediation In mediation, an independent third party (the
mediator) helps parties with a dispute to try to reach
an agreement. The people with the dispute, not the
mediator, decide whether they can resolve things, and
what the outcome should be.

Negotiation This is a form of dispute resolution – probably the
most common one. You can negotiate directly with
someone you are in dispute with, or you can have
someone negotiate for you, such as an adviser or
solicitor.

Ombudsmen Ombudsmen investigate and resolve complaints
about organisations and government bodies. They also
encourage good practice in the way complaints are
handled.

Precedent Court decisions set precedent, which means that a
decision made by a judge in one case can be used as
support in other cases. Mediation outcomes apply only
to the case mediated, and because they are usually
confidential they are not reported in public. This might
be a factor to consider if you want your case to help
other people with the same problem.

Small claim This is a type of claim that is heard in county court.
The limit on the amount that can be claimed in a small
claim is currently £5,000 – but this is increasing to
£10,000. You might be offered mediation by the court
if you are involved in a small claim.

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Why use ADR? Pros & cons - ASA guide 15

Written by Margaret Doyle
June 2012

This leaflet is published by Advice Services Alliance:
The Foundry (Room 303), 156 Blackfriars Road, London SE1 8EN

The Advice Services Alliance is a company limited by guarantee, registered in England
& Wales no. 3533317. Our registered address (not for correspondence):
New Bridge Street House, 30-34 New Bridge Street, London EC4V 6BJ.
Charity no. 1112627.
www.asauk.org.uk/adr

www.asauk.org.uk/adr

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