Alternative Dispute Resolution

Class notes - Litigation Module

ALTERNATIVE DISPUTE RESOLUTION

ADR only applies to Civil – not Criminal matters: if you have done something illegal, you cannot negotiate. Criminal is dealt with by the Crown and you don’t bargain with the Queen! J

ADR referes to a variety of techniques for resolving disputes without litigation.

We’ll be having a look at three different types of Alternative Dispute Resolution:

1.-Negotiation

2.-Mediation (3^rd party is involved)

With Negotiation and Mediation, if they don’t get to an agreement, you can go to Court afterwards (but this is not the case with Arbitration).

3.-Arbitration: It’s an exclusive alternative to court proceedings. They have an arbitrator who will reach a decision and this is binding.  You can’t go to Court afterwards if you don’t like the decision.  Spanish: “Arbitraje”.

It is usually all out of Court (that is why it is called “alternative”); it’s an alternative to a Trial.

 NEGOTIATION

n  Negotiation means trying to reach a settlement between the parties without recourse to the courts or any other third parties.

n  It doesn’t cost anything.

n  Theoretically both parties should be happy because they have both agreed to it. It’s quicker too!

n  Participation is voluntary and there is no third party who facilitates the resolution process or imposes a resolution.

n  It’s less formal. It can be done over the phone, via letter, etc.

n   You don’t need lawyers, although Negotiations are generally handled by lawyers. But you can represent yourself if you wish to.

n  Private and confidential

n  Not bound by any formal or statutory requirements/limitations

n  Disadvantages: Not binding (unless a written agreement is entered into)‏; might be a waste of time and money (if you get your lawyers involved for example,…); it can depend on personal sympathy/antipathy; court proceedings might still be necessary.

 MEDIATION

§  Mediation is an informal process whereby a third party (the mediator) guides discussions and tries to get the parties to agree some form of settlement.

§  It can be more amicable. In a family proceeding for example, a divorce settlement,… the two parties (husband & wife) are not friendly to each other anymore, so a mediator could add a little bit of rationality.

§  It’s impartial

§  It takes place outside the Court proceedings.

§  Mediation is also private and confidential (so the mediator can’t be called as a witness for example). There’s a right to confidentiality for statements made in the course of conciliation.

§  There are mediation courses that train and provide mediators. They have their own code of conduct. But in theory, anyone can be a mediator; it doesn’t have to be a legal professional.

§  The mediator is chosen by the parties.

§  Disadvantages: you may have to pay for a Mediator. You might still have to go to Court, because Mediation is not binding. It can be a waste of time and money. It can also depend on personal sympathy.

§  You don’t get penalised if you can’t reach an agreement.

§  It’s up to the parties to suggest proposals, solutions (not the mediator). It is up to them to work through their issues. 

 ARBITRATION

§  An “exclusive” alternative to court proceedings (you can’t appeal afterwards if you don’t like the decision).

§  Binding alternative to court proceedings. The decision made is binding on the parties.

§  An arbitrator’s award is final (it can be challenged – but you can’t take it to Court).

§  No appeals or recourse to court.

§  Similar to court proceedings, although the procedure is not fixed- an arbitrator takes on the role of a judge

§  Architects who deal with architectural matters/ surgeons, etc. They decide they want to deal with it through arbitration, because the arbitrator will know more about that specific subject than a judge.

§  Who appoints the arbitrator? The parties determine how they would choose the arbitrator (it needs to be on the contract where they agree to hold any future dispute to arbitration and establish where to find the arbitrator – the Royal Society of Surgeons, for example)  

§  Confidentiality is an important part of it. Some companies might prefer this option to open Court so that no one knows they have been involved in this or involved with such or such company.

§  Disadvantages: No right to appeal; can be expensive; certainty of legal procedure is not given; parties are at the mercy of the arbitrator; it can take a long time.

§  Travel companies use Arbitration very often.

PLAIN ENGLISH CAMPAIGN

"Be short, be simple, be human."
Sir Ernest Gowers, "The Complete Plain Words", third edition, 1986.

I will be doing a bit of research on the Plain English Campaign and sharing my thoughts in my blog with you.

Here is what I have found out so far:

The Plain English Campaign is an organisation based in the UK which was established in 1979 to fight against gobbledygook, jargon and misleading public information. Their aim is that everyone has access to clear and concise information.
The campaign officially began after founder Chrissie Maher publicly shredded hundreds of official documents in Parliament Square, in London. The campaign funds itself through its commercial services, which include editing and training.
They even offer In-house courses as well as on-line courses and you can get a "Plain English Diploma".

They have 12,000 members in 80 countries around the world!

Let's have a look at this advice from George Orwell:

1- Never use a metaphor, simile, or other figure of speech which you are used to seeing in print.

2- Never use a long word when a short one will do.

3- If it is possible to cut a word out, always cut it out.

4- Never use the passive where you can use the active.

5- Never use a foreign phrase, a scientific word or a jargon word if you can think of an everyday English equivalent.

6-Break any of these rules sooner than say anything outright barbarous.

George Orwell, "Politics and the English language", in Collected Essays, Journalism and Letters of George Orwell, vol. 4 ed. S. Orwell and I Angus (London: Secker & Warburg, 1968).


"Lawyers have two common failings. One is that they do not write well and the other is that they think they do." Carl Felsenfeld, "The Plain English Movement in the United States". Canadian Business Law Journal, vol. 6, 1981-82.


If you would like to read more about the Plain English Campaign, please visit their website. They even have an online magazine:
http://www.plainenglish.co.uk/plain-english-magazine.html

What are your views on the Plain English Campaign?

It is said that businessess use legalese to confuse their clients. A lay person might not understand, for example, the Terms and Conditions of a new credit card or how the interest rate can change. This could lead to serious problems. Do you think this is just part of the process? Do they do it on purpose so that the buyer doesn't know what they're getting themselves into?

The Plain English Campaign goes further and actually thinks that when the language of corporations and governments confuses citizens, it “takes away our democratic rights,” Chrissie Maher believes "language has been misused and has contributed to the economic disaster.”

I found this interesting article on this subject. If you want to read more about it, please follow this link:

Read more: http://business.time.com/2009/10/06/the-plain-english-campaign-waging-war-against-gobbledygook/#ixzz2B4wLQCd1

Needless is to say that I, personally, find this subject very interesting.

You'll be suprised to know that we are not only talking about legal forms and burocratic writings. I was amazed to find the following abstract on their website:

"Debenhams has provided customers with a ‘plain English’ coffee menu, replacing potentially confusing terms such as ‘Cappuccino’ and ‘Caffe lattte’ with ‘frothy coffee’ and ‘really really milky coffee’.
So, rather than ordering something that sounds exotic but which you’re not entirely sure about, you can now get precisely what you want in no uncertain terms.
The move will surely go down well with the 70% of coffee customers who have suggested that they have experienced ‘coffee confusion’. Rather than mull over buying a ‘mocha’, customers can now be certain that what they’re getting is ‘chocolate flavoured coffee’.
And do you know what size ‘tall’ (small) or ‘venti’ (extra large) is? This is no longer an issue at Debenhams: it’s now a simple case of ‘mug’ or ‘cup’.
Chrissie Maher, Founder Director of Plain English Campaign, is delighted at the move. ”Whether it’s coffee, tea or chocolate, it needs to be in plain English so the customers can make an informed choice. If they can read the menu clearly, they are more likely to try something new – and who knows – they may come back for more.“

What are your thoughts?