Law: Same problems, other solutions: In some cases, going to court may not be the best answer. Sharon Wallach looks at alternative dispute resolution

A YEAR ago, alternative dispute resolution (ADR) became a buzz word in legal circles. It is a series of alternative procedures to the court system which, in general, provides for a neutral person to work with the disputing parties, using methods ranging from the informal in personal disputes to highly sophisticated procedures for complex and technical commercial issues.

There are two distinct strands in ADR; family work, and civil or commercial disputes. On the family side, several organisations have moved matrimonial proceedings away from the traditional adversarial form of litigation. In the commercial arena, non-litigious methods of resolving disputes have been used for some time in various areas. The role of the Advice, Conciliation and Arbitration Service in industrial disputes is well known, for example, and more commercial agreements, particularly in the construction field, provide for the resolution of disputes by arbitration. ADR facilities are offered by the non-profit making Centre for Dispute Resolution (CEDR) and there are various networks of solicitors' firms providing mediation services.

A comprehensive report on ADR was prepared for the Law Society last year by Henry Brown, a partner of the City firm Penningtons, a founder of the Family Mediators Association and a writer, lecturer and trainer in the field.

How far has ADR progressed in terms of acceptance since that report? 'We're not talking in terms of a massive breakthrough,' Mr Brown says. 'We need to make more people aware of ADR to bring about a change in the culture of dispute resolution, and that is gradually happening.'

The latest issue of CEDR's newsletter reports that referrals for mediation are steadily increasing. 'Well over pounds 300m worth of disputes has now been referred for possible mediation to CEDR,' it says. More than 125 disputes have been taken on the books; some 16 - involving sums of more than pounds 60m - have been successfully mediated. Cost savings of up to pounds 250,000 for each party have been achieved, the newsletter says.

'Some people are disappointed by the figures,' says Mr Brown, 'but those close to the field regard them with satisfaction. They mean that more and more people are accepting the idea of ADR. It's also worth remembering that commercial ADR arrived in the US in the Seventies, but did not come here until 1990.'

This is too short a timescale in which to expect the process to gain acceptance, Mr Brown says. 'If you talk about the next five years, I think it will happen.' More support is coming from what he regards as unlikely quarters - lawyers renowned as tough and adversarial. 'They realise that training in ADR methods provides them, at the least, with an additional resource. They also recognise that the present system is not 100 per cent ideal and we have to start looking for alternatives.'

One way forward, Mr Brown believes, is to introduce ADR into a greater spread of activities. 'Medical negligence claims, for instance, are crying out for a different process,' he says. Current procedures are unsatisfactory for the health authorities facing enormous claims, for the doctors facing negligence allegations and for the patients, who feel overlooked. 'ADR opens an opportunity for another forum for all three groups - as well as the lawyers - to work out their problems in a non-adversarial way.'

A report commissioned by Turner Kenneth Brown, the London law firm, has tested the reaction to ADR techniques, particularly in the construction, insurance and information technology sectors. The survey suggested that the perceived advantages of ADR were that it was cheaper, saved time, allowed a continuing relationship with the other party, offered flexibility and confidentiality and preserved goodwill.

Of the sample surveyed, 69 per cent were aware of the existence of ADR. However, only 9 per cent had used it. 'Business people are fascinated by ADR,' Mr Brown says. 'But they are waiting for someone else to use it first.'

Manpower is not a problem to the increasing acceptance of ADR: there are now many thousands of mediators in this country, with a constant flow of people training. 'Labour disputes aside, there are probably more mediators than cases,' Mr Brown says.

Funding, on the other hand, is 'the crucial issue in a coherent thrust for change'. All the organisations in the different fields of ADR are worried about it, Mr Brown says. 'There must be funds for central organisations to provide supervision, training and support, to maintain a code of practice and keep practitioners up to date.' The funding of cases is part of the same issue. 'We don't want ADR to be seen as a middle-class, middle-income activity, but at the moment that is what it is. We continue to hope that legal aid will be made available.'

Most civil and commercial cases are paid for by clients or their insurance companies. But, as the Law Society's recently published second report on ADR underlines, in family disputes, providers of ADR services are largely dependent on charitable grants and voluntary contributions supplemented by a limited amount of legal aid under the green form scheme in specific instances.

'The availability of state funding for ADR is crucial for its development,' the report says. The opportunity to use ADR 'should be available to anyone involved in a dispute which might be resolved in this way'.

Mr Brown adds: 'The frustrations are that those with the power are showing no signs of readiness to try it out. The problem is that there is as yet no empirical evidence as to whether ADR techniques would bring costs savings, and there is no will on Government's part to provide a wider net - all it is doing is cutting back. There are a lot of arguments, questions and reservations - but also a lot of support - that is the shift.'

(Photograph omitted)

Suggested Topics
Start your day with The Independent, sign up for daily news emails
PROMOTED VIDEO
Have you tried new the Independent Digital Edition apps?
ebooks
ebooksA special investigation by Andy McSmith
Life and Style
life
Arts and Entertainment
Cold case: Aaron McCusker and Christopher Eccleston in ‘Fortitude’
tvReview: Sky Atlantic's ambitious new series Fortitude has begun with a feature-length special
Voices
Three people wearing masks depicting Ed Miliband, David Cameron and Nick Clegg
voicesPolitics is in the gutter – but there is an alternative, says Nigel Farage
Voices
The veterans Mark Hayward, Hugh Thompson and Sean Staines (back) with Grayson Perry (front left) and Evgeny Lebedev
charity appealMaverick artist Grayson Perry backs our campaign
News
i100
News
people
Sport
Chelsea manager Jose Mourinho
footballThe more Jose Mourinho attempts to influence match officials, the more they are likely to ignore him
Life and Style
Vote green: Benoit Berenger at The Duke of Cambridge in London's Islington
food + drinkBanishes thoughts of soggy school dinners and turn over a new leaf
News
Joel Grey (left) poses next to a poster featuring his character in the film
peopleActor Joel Grey comes out at 82
News
i100
News
business
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
Independent Dating
and  

By clicking 'Search' you
are agreeing to our
Terms of Use.

iJobs Job Widget
iJobs General

Ashdown Group: Marketing & Sales Manager

£40000 per annum: Ashdown Group: A reputable organisation within the leisure i...

Tradewind Recruitment: Science Teacher

£90 - £140 per day: Tradewind Recruitment: I am currently working in partnersh...

Recruitment Genius: Doctors - Dubai - High "Tax Free" Earnings

£96000 - £200000 per annum: Recruitment Genius: Looking for a better earning p...

Recruitment Genius: PHP Developer

£32000 - £36000 per annum: Recruitment Genius: A rapidly expanding company in ...

Day In a Page

Isis hostage crisis: The prisoner swap has only one purpose for the militants - recognition its Islamic State exists and that foreign nations acknowledge its power

Isis hostage crisis

The prisoner swap has only one purpose for the militants - recognition its Islamic State exists and that foreign nations acknowledge its power, says Robert Fisk
Missing salvage expert who found $50m of sunken treasure before disappearing, tracked down at last

The runaway buccaneers and the ship full of gold

Salvage expert Tommy Thompson found sunken treasure worth millions. Then he vanished... until now
Homeless Veterans appeal: ‘If you’re hard on the world you are hard on yourself’

Homeless Veterans appeal: ‘If you’re hard on the world you are hard on yourself’

Maverick artist Grayson Perry backs our campaign
Assisted Dying Bill: I want to be able to decide about my own death - I want to have control of my life

Assisted Dying Bill: 'I want control of my life'

This week the Assisted Dying Bill is debated in the Lords. Virginia Ironside, who has already made plans for her own self-deliverance, argues that it's time we allowed people a humane, compassionate death
Move over, kale - cabbage is the new rising star

Cabbage is king again

Sophie Morris banishes thoughts of soggy school dinners and turns over a new leaf
11 best winter skin treats

Give your moisturiser a helping hand: 11 best winter skin treats

Get an extra boost of nourishment from one of these hard-working products
Paul Scholes column: The more Jose Mourinho attempts to influence match officials, the more they are likely to ignore him

Paul Scholes column

The more Jose Mourinho attempts to influence match officials, the more they are likely to ignore him
Frank Warren column: No cigar, but pots of money: here come the Cubans

Frank Warren's Ringside

No cigar, but pots of money: here come the Cubans
Isis hostage crisis: Militant group stands strong as its numerous enemies fail to find a common plan to defeat it

Isis stands strong as its numerous enemies fail to find a common plan to defeat it

The jihadis are being squeezed militarily and economically, but there is no sign of an implosion, says Patrick Cockburn
Virtual reality thrusts viewers into the frontline of global events - and puts film-goers at the heart of the action

Virtual reality: Seeing is believing

Virtual reality thrusts viewers into the frontline of global events - and puts film-goers at the heart of the action
Homeless Veterans appeal: MP says Coalition ‘not doing enough’

Homeless Veterans appeal

MP says Coalition ‘not doing enough’ to help
Larry David, Steve Coogan and other comedians share stories of depression in new documentary

Comedians share stories of depression

The director of the new documentary, Kevin Pollak, tells Jessica Barrett how he got them to talk
Has The Archers lost the plot with it's spicy storylines?

Has The Archers lost the plot?

A growing number of listeners are voicing their discontent over the rural soap's spicy storylines; so loudly that even the BBC's director-general seems worried, says Simon Kelner
English Heritage adds 14 post-war office buildings to its protected lists

14 office buildings added to protected lists

Christopher Beanland explores the underrated appeal of these palaces of pen-pushing
Human skull discovery in Israel proves humans lived side-by-side with Neanderthals

Human skull discovery in Israel proves humans lived side-by-side with Neanderthals

Scientists unearthed the cranial fragments from Manot Cave in West Galilee