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Chapter

Cover A Practical Approach to Alternative Dispute Resolution

24. Expert or Neutral Determination  

This chapter studies expert or neutral determination. Expert determination differs from early neutral or expert evaluation because the parties will appoint an expert to make a decision or formal determination on the issues referred to the expert. The expert can only make a decision within the boundaries laid down by the parties. In this sense, expert determination is a determinative process, rather than a facilitative process (mediation) or an advisory evaluative process (neutral evaluation). Expert determination differs from evaluation because the expert is asked to do more than produce a non-binding evaluation, opinion, or recommendation in relation to the issues in dispute, but rather to determine those issues. The decision is usually final and binding on the parties, and it can only be challenged in court proceedings in very limited circumstances.

Chapter

Cover English Legal System

16. Alternative dispute resolution  

Alternative Dispute Resolution (ADR) describes any method of resolving legal disputes other than through litigation in the courts or tribunals. ADR includes arbitration, mediation, adjudication, conciliation, med-arb, and early neutral evaluation/expert determination. This chapter explains the differences between the various forms of ADR, why ADR exists, its many advantages (compared to litigation), and its disadvantages. The chapter examines case law dealing with the ‘cost consequences’ of a failure by one party to a legal dispute to engage in ADR when presented with the opportunity to do so. The chapter considers whether ADR should be made compulsory and the extent to which the parties to a dispute, having agreed to resolve their dispute through ADR, can be compelled to honour that agreement.

Chapter

Cover A Practical Approach to Alternative Dispute Resolution

2. Overview of ADR Options  

This chapter presents an overview of the alternative dispute resolution (ADR) options available to parties to a dispute in England and Wales, outlining the most commonly used processes. A lawyer should be familiar with the range of ADR options and be able to advise a client on appropriate use of ADR. This includes familiarity with each process, when it should be used, who might attend, and key strengths and weaknesses. ADR options can be broadly divided into processes that are adjudicative (where a third party takes a decision) and those which are non-adjudicative (where the parties approve any proposed settlement). The main non-adjudicative options are negotiation and mediation. The main difference between the two is that a negotiation is normally conducted by lawyers, whereas a mediation includes a neutral third party. Meanwhile, the main adjudicative options are arbitration and expert determination.

Chapter

Cover Commercial Law

Additional Chapter Aspects of Commercial ADR  

Although there is no formally agreed definition of alternative dispute resolution (ADR), it is generally accepted as including all methods of resolving disputes other than through formal litigation. The use of ADR has developed significantly over the past few decades and despite the use of the word ‘alternative’ it is now very much part of mainstream thinking in modern-day dispute resolution. The importance of ADR to civil actions was reinforced by the Civil Procedure Rules in 1998, which emphasized it as part of the overriding objective, encouraged at all stages of the dispute process, from pre-action to after litigation has commenced. This is reinforced by sanctions that a court can impose on a party which fails properly to embrace the process. The Review of Civil Litigation Costs carried out by Jackson LJ further promoted the importance and use of ADR. There are many different forms of ADR, both adjudicative and non-adjudicative. This chapter will focus on the use of mediation as a non-adjudicative form of ADR and the steps the courts take to require (rather than compel) the parties to attempt to resolve their disputes.