“The spiralling costs of contentious litigation, and the delays, uncertainties and lasting acrimony which such litigation occasions, have however over the past 20 years led to the increasing recognition by the judiciary, legal advisers and the disputants themselves that contentious litigation itself should be recognised as the option of last resort […]”
Sir Gavin Lightman, Royal Courts of Justice, Strand, London, October 2001
The above quote addresses the problem of the expensive and long lasting process of litigation in courts, which has not only been the case in England and Wales but also in Germany.
In this paper different techniques for resolving disputes outside traditional court in both countries will be examined.
As a solution for the named problem Alternative Dispute Resolution (“ADR”) made its way into being an option for solving disputes. By definition “ADR is a form of facilitated settlement that is confidential and without prejudice. Consequently the contents of the process need not usually be disclosed to a court. Because it is a form of settlement process the client is not at risk of being bound to an unfavourable outcome by a third party’s decision” (Caller, 2002, p. 1). It is then voluntary to enter into a binding agreement as long such is reached. If ADR fails, the case can still be carried to the court, normally without disclosing the reasons of failure. It should be stressed out that participants do not run the risk of losing control of the process, as it is without prejudice and non-binding – contrary to a judgment at trial (Caller, 2002, pp. 1-2).
It is important to keep in mind that ADR is only an option for solving disputes since “everyone has the right to recognition everywhere as a person before the law“ (Art. 6, UDHR).
Moreover ADR primarily concentrates on resolving personal disputes between parties where their claims are not massive or even perhaps try to resolve other issues involving family relationships, child custody and issues concerning land ownership (Keenan & Riches, 2007). This paper concentrates on the use of ADR in business.
Table of Contents
1. Introduction
2. Analysis
2.1. ADR in England and Wales
2.1.1. Arbitration
2.1.2. Mediation
2.1.3. Conciliation
2.1.4. Ombudsman Schemes
2.1.5. Others
2.2. ADR in Germany
2.2.1. Arbitral Procedure
2.2.2. Conciliation Procedure
2.2.2.1. Voluntary
2.2.2.2. Obligatory
2.3. ADR in Practice
3. Conclusion
Research Objective and Scope
This paper examines various techniques for resolving legal disputes outside of the traditional court system, focusing on Alternative Dispute Resolution (ADR). The central research objective is to provide a comparative analysis of how these ADR methods are applied and regulated within the legal frameworks of England/Wales and Germany, specifically within a business context.
- The definition and fundamental principles of Alternative Dispute Resolution.
- Comparative analysis of ADR mechanisms in England and Wales, including arbitration, mediation, and ombudsman schemes.
- Evaluation of the German legal framework regarding arbitral and conciliation procedures.
- Practical application of ADR techniques through real-world business case studies.
- Legal developments and the role of international standards like UNCITRAL.
Excerpt from the Book
2.1.1. Arbitration
Arbitration involves disclosing disputes to an independent arbitrator of choice - legally qualified or with special knowledge. The arbitrator does not have to be a single person, in fact sometimes arbitration panels are used. Cases are being discussed in private and at everyone’s convenience, although decisions made are binding to both sides, as they have to agree in the beginning. These decisions can then be enforced similar to judgement in court (Keenan & Riches, 2007, p. 68).
Usually only the arbitrator makes the decision without the parties involved. They will most likely come to their decision on the basis of written information rather than hearing the parties, which would, if it does take place, be less formal than in court (Advice Services Alliance, 2010a).
Furthermore, arbitration is common in resolving international disputes, employment rights disputes, consumer disputes, and disputes between major corporations. In these cases contracts often have clauses involved stating that arbitration will be used for solving disputes, whose outcomes are then binding to all signatories (Advice Services Alliance, 2010a).
Summary of Chapters
1. Introduction: This chapter highlights the rising costs and delays associated with traditional litigation and introduces ADR as an efficient, confidential, and voluntary alternative for dispute resolution.
2. Analysis: This section provides a detailed comparative overview of ADR techniques available in England/Wales and Germany, covering arbitration, mediation, conciliation, and various sector-specific schemes.
3. Conclusion: This chapter synthesizes the findings, noting the structural similarities between the ADR systems of both countries while discussing the impact of international standards on their respective legal frameworks.
Keywords
Alternative Dispute Resolution, ADR, Arbitration, Mediation, Conciliation, Litigation, England and Wales, Germany, Business Law, Woolf Reforms, Arbitral Procedure, Ombudsman Schemes, Civil Procedure Rules, International Disputes, Legal Settlement
Frequently Asked Questions
What is the primary focus of this work?
The work provides a comparative legal analysis of Alternative Dispute Resolution (ADR) techniques used to resolve business disputes in England/Wales and Germany.
What are the central themes covered?
The core themes include the definition of ADR, procedural differences in arbitration and mediation, the legislative frameworks in both countries, and practical applications in business.
What is the research objective of this paper?
The goal is to examine how ADR serves as an alternative to the spiraling costs and complexities of traditional litigation in both jurisdictions.
Which scientific methodology is employed?
The paper utilizes a comparative legal analysis, reviewing existing literature, statutory regulations, and legal precedents to compare the application of ADR methods.
What content is addressed in the main body?
The main body delineates specific methods such as arbitration, mediation, conciliation, and ombudsman schemes, distinguishing between voluntary and obligatory procedures in Germany versus the UK system.
Which keywords best describe the paper?
Key terms include Alternative Dispute Resolution, Arbitration, Mediation, Conciliation, Business Law, and comparative legal frameworks.
How does the German approach to ADR differ from the English one regarding arbitration?
The paper notes that the main differences lie in the context of arbitration, as Germany has adopted specific international standards like the UNCITRAL statute, whereas England and Wales rely on their own domestic acts like the Arbitration Act 1996.
What role do tribunals play in the English system?
Tribunals are positioned between arbitration and court proceedings; they are more formal than other ADR techniques and require three judges, with their decisions being legally binding.
How is the term 'Mediation' interpreted in Germany?
The author notes that in Germany, 'mediation' is often used as a modern term for 'conciliation' (Schlichtung) rather than necessarily representing a distinct technical process.
What practical examples of ADR are mentioned?
The paper illustrates the use of conciliation in high-profile business cases, specifically the "Stuttgart 21" project and the "Lufthansa Rate Dispute".
- Quote paper
- Anonym (Author), 2011, Alternative Dispute Resolution, Munich, GRIN Verlag, https://www.hausarbeiten.de/document/214002
