This chapter considers alternative dispute resolutions (ADR), which are ways that a dispute can be settled outside the court process. The chapter considers the growth of ADR and how the courts now require litigants to consider ADR before commencing legal action. The courts have wide powers to encourage ADR and this chapter considers these powers and why the courts try to encourage ADR. The key forms of ADR are then presented, together with an analysis of their strengths and weaknesses.
Chapter
19. Alternative Dispute Resolution
Chapter
11. Alternative dispute resolution
This chapter examines the ethical issues raised by alternative dispute resolution (ADR). It first looks at the process of negotiation, which is the way in which lawyers resolve most disputes. It then considers other forms of ADR, including mediation and, briefly, arbitration. The chapter highlights the advantages and disadvantages of these processes. There are particular concerns where one party is in a stronger bargaining position, for example in a family case which has involved domestic abuse. There is also much debate over the role a mediator should play, andin particular over whether a mediator should take a neutral role or persuade the parties to reach what they regard as a fair settlement. It also considers what attracts clients to use these forms of dispute resolution.
Chapter
20. Negotiation skills
This chapter introduces the skills needed to prepare for and conduct an effective negotiation, including the research process and different negotiation styles. It also considers the problems that can arise during negotiation and outlines a range of strategies that can be used to overcome them. In essence, it is a step-by-step introduction for those with no previous negotiation experience as well as a source of advice for the more experienced negotiator. A range of examples is used to demonstrate the skills involved in negotiation.
Chapter
8. The Civil Justice System
Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. This chapter discusses the civil justice system. Civil justice is concerned with the private dispute between individuals in the absence of the state. It seeks to solve disputes before they have had a chance to enter the legal structure, through the use of alternative dispute resolution (ADR). Civil justice follows a similar pattern to its criminal counterpart; however, some of the procedural rules—specifically those relating to evidence—appear to be much more relaxed than in the criminal justice system. During the process of civil justice, a number of issues may arise which would bring the procedure to an end. These issues include ADR, through which parties may decide to settle the case at any point; default judgment, wherein judgment may be entered against a defendant at any point in the proceedings; and offers to settle, known as ‘Part 36 Offers’, in which an individual makes an offer to another without prejudice.
Chapter
12. Negotiation and mediation
Scott Slorach, Judith Embley, Peter Goodchild, and Catherine Shephard
This chapter provides guidance as to how to conduct a negotiation and a mediation, and explains the difference between the two. It covers how, why, and when a law student might require these skills, and how to further develop the skills for professional practice. Advice is given about how to prepare effectively for a negotiation by drafting a negotiation plan. There is consideration of the different approaches to conflict and uncertainty and how they impact negotiation style. The BATNA is defined and discussed. For mediation, a flowchart is provided to guide students through the mediation process. The growing trend towards online dispute resolution is covered.
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8. The civil and commercial justice systems
This chapter discusses the civil and commercial justice systems. It considers the purpose of the civil justice system and also covers the use of alternative dispute resolution and the incentives to keep disputes out of the court. It looks at the court structure, the county court, the High Court, the newly created Business and Property Courts of England and Wales, and other courts and offices. It considers possible changes that may result from the Transformation programme and the civil and commercial justice systems’ response to the COVID-19 pandemic. It also considers routes of appeal and the work of the appeal courts.
