Alternative Dispute Resolution (ADR)

What it is and why use it?


ADR is:

  • Private
  • Quicker
  • Cheaper
  • ...and you can still go to court if it fails

Since Lord Woolf’s reforms of the civil justice system ADR will play an increasingly large role in disputes. This is because the new Civil Procedure Rules say that it is the court’s duty in managing cases to encourage parties to use ADR. If a party fails without good reason to try ADR before using court proceedings he may be asked to pay EXTRA costs to the court.

Why might courts not be the best way to settle things?

Adversarial Process

Technical Cases

  • Some disputes hinge on technical points rather than legal points
  • An ordinary judge may not be the best person to deal with it, using expert witnesses raises costs and takes time
  • If you use ADR, these experts can take the place of the judge


  • Fixed rules in a courtroom may not be suitable for your particular dispute
  • ADR allows the concerned parties to take control of the process

Imposed solutions


  • The majority of court hearings are in public - a business may not want this
  • Important trade secrets may arise in the hearing and this could cause problems if the public hears them - you can keep your details private with ADR

As most disputes are settled before trial anyway, often at the courtroom door after spending a lot of time and money trying to resolve it; why not settle sooner rather than later. If you try ADR you can still keep the right to use the formal court system if you are not happy with any outcome.


There are two types of ADR: Negotiation and Mediation

Negotiation is where you and the other party negotiate directly with each other. It's private, quick and cheap because no lawyers are involved, although you can involve them if necessary.

Mediation is where a neutral mediator agreed upon by both parties helps them to reach a compromise situation. The mediator will explore the positions of both parties and carry offers from one party to the other whilst maintaining confidentiality. The mediator will not reveal their own views, but may be asked for an opinion.

There are two distinct strands of mediation:

Family mediation

Mediation is not a substitute for legal advice but it reduces conflict and helps people to make their own decisions. It also helps people test how realistic their proposals are.

Civil and Commercial mediation

There is an increasing number of commercial mediation services. The foremost of these is the Centre for Dispute Resolution (CDR), this is based in London and is aimed at large disputes. Lots of big London law firms are members of the CDR and it helps to save thousands of pounds in court costs - a mediator costs £1,000-£1,500 whilst litigation may cost over £100,000. The CDR claims to solve 80% of its cases - even if not solved, the issues are cleared up so that when the parties do go to court it will not take as long.

Resolving Smaller Disputes (e.g. neighbor disputes)

West Kent Independant Mediation Service - free to use. Used for noise, car parking, dogs and boundary fence disputes. It's run by trained volunteers who don't take sides and don't make judgements on the rights or wrongs of an issue. The volunteers will visit the party who made the complaint to hear their side of the story and then visit the other party to hear their side. If both parties are willing, the volunteer then arranges a meeting between them in a neutral place. The parties are in control and can withdraw from the mediation process at any time.

Formalised Settlement Conference (mini trial)

This is a more formal method of mediation, like a mini trial. It is based on commercial common sense and compromise and avoids the adversarial conflict of a courtroom. It makes it easier for companies to continue doing business with each other in the future. Both sides present their case to a panel composed of a decision making executive from each party plus a third neutral party. If these executives cannot agree then the neutral advisor will act as a mediator between them.

Research into mediation shows that:


  • Even if mediation did not solve the dispute, parties were more likely to settle without going to court
  • It can promote an early settlement
  • No allocation of blame so they can still trade with each other - the relationship is still in tact.


  • Amounts paid in mediated settlements were lower than those awarded by the courts
  • Mediation is often controlled by the mediators instead of the parties (it is important to have an experienced and competent mediator)

NB: This writeup applies to English law.

Albert Herring adds: Vast amounts of this stuff going on in various bits of the EU; have translated much turgid material on the subject. Eurochambres are big on it. The writeup is anglocentric at the beginning.

Source: My knowledge as an English law student

Australia, formerly subject to British common law, has a similar system. This is a reproduction of a recent essay task, heavily abbreviated.

Each year as a result of marriage breakdown and issues arising from it a large number of women, men and children come into contact with the legal system in its various forms, be that contact with primary dispute resolution services, the legal profession (including legal aid and community legal centres), or with the court system. Statistics indicate that most prospective divorcees are within the 25-29 year age bracket and that half of all marriages desired to be terminated are of less than 10 years. As under legislation no party can contest the dissolution of a marriage until after one year’s separation, most cases brought before the court concern the custody of children or asset division. In these circumstances, litigation is unlikely to be the most equitable or effective means. The Court acknowledges three stages of proceeding: pre-agreement, which is reached without the court but may be validated by it, resolution, agreement reached without legal imposition using facilities provided by the court, and determination, wherein matters finally come to trial.

Approximately 95% of couples who use Family Court services reach agreements via non-binding court services before matters are taken to trial, which is a course strongly encouraged because it reduces trauma, has far less hostile implications (which will, in turn, lend some cohesion to further parenting) and allows individuals to seek solutions on their own terms as court decisions rarely permit a great degree of flexibility. These arrangements can be given the same force as a court decision with a consent order (which can govern parenting, residence, contact or specific issue orders in most cases) and considerations are taken for apprehension of violence orders when legitimising these (so as to become as legally binding as an order given by the court itself).

Section 60 of the Family Law Reform Act 1995 (Cth) states that:
1) Children have the right to be cared for by both parents, regardless of marital status,
2) Children have the right to regular contact with both parents and others significant to their welfare,
3) Parents share duties and responsibilities concerning their children’s care and development and,
4) Parents should agree about the future parenting of their children.
This is the basis upon which the court acts when making decision which concern the custody of children and is also stressed as the primary consideration in less authoritative settlements. In most cases (due to reasoned assessment, rather than a legal doctrine), the mother becomes the primary caregiver while the father is apportioned certain responsibilities in order to meet the listed criteria. It is important to consider that this means a spouse may well seek maintenance in order to maintain the child’s standard of living. This can often be a contested matter in conjunction with asset division (it being held that non-monetary contributions to a household are equally valid as employment when apportioning property) or due to differing views on what should be considered a priority in attaining justice. If this is to become a legal matter, it likely means that the relationship has become drastically unequal.

Often, where disparity exists in matters of financial division or child custody, parties cannot approach dispute resolution through courts on a level footing. In particular, women (especially those who have been in lengthy relationships) often have more difficulty in this regard. With lower average earning power than their male counterparts (due to primary care of children and/or maintenance of a home), court procedures may prove inaccessibly expensive. If legal action is still sought in relation to the above matters, the absence of adequate legal representation may ensure an unjust outcome. Section 43 of the Family Law Act 1975 (Cth) advocates couples to “consider reconciliation or the improvement of their relationship to each other and to the children of the marriage” through a counsellor; alternative dispute resolution recommends itself by virtue of its minimal expense and strong emphasis on agreement over enforcement. Just as with the court, a no-fault basis is assumed and the existence of any infraction is considered a non-legal matter, where prior to the introduction of the above legislation a spouse who desired divorce would have to prove a matrimonial offence (usually habitual intoxication, cruelty, desertion, adultery or separation).

There are three basic guidelines for alternative dispute resolution: mediation, arbitration and conciliation. Mediation is the most widely recognised and involves a discussion between the two parties in the presence of a neutral third party - the mediator(s). This method functions best when the potential divorcees only seek substantiation of a general framework for a settlement. Arbitration involves the same party hearing cases presented by both sides before imposing a (non-legally binding) decision upon them, which again requires a degree of co-operation. Conciliators function as mediators, albeit with more investment of personal opinion. In this latter case, professional (experienced) advice can often hold a tenuous dialogue together far better.

Dispute resolution is, though, only as stable as the relationship between the conflicting parties and heavily subject to the nature of the dispute; if sustained conversation is impossible, so too is acquiring a settlement thereby. In instances where one party is feeling intimidated by the other, mediators may chose to utilise a triangular dialogue pattern, whereby all information is interchanged through the mediator, rather than directly. Technological advance offers solutions of this kind, providing teleconferencing facilities and other less confrontational communication methods, reducing the probability of personal attacks.

One redeeming advantage is that the mediator has the capacity to interject and attempt to divert hostile dialogue. Furthermore, mediators (as psychologists and social workers) are more likely to strive for ideal solutions than lawyers and will not neglect or omit facts from decisions (although there are no rules of evidence in mediatory sessions, a frank and complete disclosure of assets would ideally be made by both parties so as to achieve a “just and equitable” outcome as described under Section 79 of the Family Law Act 1975 (Cth)). Parties are under the obligation to make this disclosure in court, although statements made in conferences of this kind are generally confidential, thereby allowing both parties to approach later court hearings (if such there be) with greater understanding of their circumstance but no greater vulnerability.

Conciliatory processes also offer the chance for sparring couples to get back together - during the 12 month period required to demonstrate that potential divorcees are living separately and apart, couples can resume their prior relationship for periods of up to three months without invalidating prior separation. This process - if proved to be ineffective - can also function to convince a judge of irretrievable breakdown in a relationship, which is essential in obtaining the dissolution of marriage (or principal relief).

Dispute resolution mechanisms do have flaws, of course, most notably that they rely on the capacity to inject reason into emotionally-charged situations although statistics clearly demonstrate their validity, if only for the fact that only one in twenty marriage cases proceed beyond them. Evidence also suggests that settlements made in mediation sessions are more likely to be adhered to.


Internet sources:

• Marantelli, Stephen and Nethercote, Tim, Without Prejudice, 1992, Hodder and Stoughton (Aus.) Pty. Ltd., 80 Waverley Rd., Caulfield, Victoria,
• Marantelli, Stephen and Nethercote, Tim, Without Fear or Favour, 1992, Hodder and Stoughton (Aus.) Pty. Ltd., 80 Waverley Rd., Caulfield, Victoria,
• Sexton, Michael, Uncertain Justice, 2000, New Holland Publishers Australia Pty. Ltd., 14 Aquatic Drive, Frenchs Forest, NSW,
• Bowen, Jan, the Macquarie Easy Guide to Australian Law, 1989, The Macquarie Library Pty. Ltd., Macquarie University NSW 2109,
• James, Kathleen, Barry, Rosemary and Brennan, David, the Law Handbook 8th Edition, 2002, Redfern Legal Centre Publishing Ltd., 122 George St., Redfern, NSW 2106.

Other Documents:
• Family Court of Australia, Marriage, Families and Separation,
• Family Court of Australia, Primary Dispute Resolution Services in Family Law,
• McInnes, Elspeth Dr., Family Law (Joint Residency) Bill 2002,
• Nanlohy, Susan, the Best Interests of the Child? The Interaction of Public and Private Law in Australia,
• Morgan, John K., Alternative Dispute Resolution: Legal Obligations.

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