Dispute Resolution

This articles discusses procedures for resolving disputes between private individuals, and between private individuals and the state.

Consensual and Adjudicatory Dispute Resolution

Although the conventional classification of dispute resolution procedures is litigation, arbitration and ADR a more natural categorization would be between consensual and adjudicatory methods of dispute resolution

• • Consensual: procedures for reaching consensus between the parties such as direct negotiation and mediation; and

  • Adjudicatory: determination by a third party of the issues in dispute such as administrative tribunal proceedings, arbitration, civil litigation, early neutral evaluation, expert determination and mini-trials.

There are also a number of hybrids such as "med/arb" (mediation followed by arbitration) and "ombudsmen".

Each of those processes has its strengths and weaknesses. Some are more suitable for some types of dispute resolution than they are for others. They should not, however, be regarded as alternative or competing processes. Different methods are often used to resolve different issues of the same dispute at different stages.

Consensual Methods

There are essentially two consensual methods of dispute resolution, namely direct negotiation and mediation. There are also two negotiation techniques, positional negotiation or hard bargaining and principled negotiation or consensus building. Mediation is a development of principled negotiation.

Direct Negotiation

In their well-known book, "Getting to Yes: Negotiating Agreement without Giving in", Roger Fisher and William Ury of Harvard Law School contrasted "positional negotiation", where parties trade their advantages for concessions from the other side, with "principled negotiation", where they look for solutions based on shared interests. Principled negotiation involves separating people from the problem, focussing on interests rather than positions, inventing options for mutual gain and insisting on objective criteria.

Mediation

Mediation is essentially chaired negotiation. A trusted third party ("the mediator") gathers information about the interests and motivation of the parties in confidential discussions called "caucuses". Such information gathering reveals whether there are common interests or options for mutual gain. Without breaching any confidence the mediator coaxes the parties towards those common interests or options for gain and guides them towards a solution with which they can both live.

Ombudsmen

Ombudsmen deal with complaints about public or private sector services. Their services are free of charge. Each ombudsman scheme operates under slightly different rules, but, in general, an ombudsman considers a complaint only where the body concerned fails to deal with it. Where an ombudsman considers a complaint he makes an investigation and writes a report which will normally set out the evidence and make proposals for resolving the dispute. Where the complaint is upheld, the ombudsman will expect the organization to provide a suitable remedy

Adjudicatory Methods

Procedures by which third parties determine issues in dispute can be formal or informal, binding or advisory. Formal procedures include litigation and administrative tribunal proceedings and some arbitrations. Informal proceedings include early neutral evaluation and expert determination.

Litigation

These are procedures through the courts provided and paid for by the state. There are separate court systems in the UK for England and Wales, Scotland and Northern Ireland.The Lord Chancellor (now known as the Secretary of State for Justice) is responsible for the administration of justice in England and Wales.

The courts in England and Wales are managed by Her Majesty's Court Service. There are 2 tiers of civil courts of first instance in England and Wales

• • the High Court of Justice, which sits in the Royal Courts of Justice in London and district registries in the larger towns and cities elsewhere, and

  • a network of county courts in every major population centre. Appeal from the High Court and county courts lies to the Court of Appeal and thereafter to the Supreme Court of the United Kingdom..

The Supreme Court has replaced the House of Lords as the court of last resort pursuant to. S.23 of The Constitutional Reform Act 2005. The judges who sit in the Supreme Court also sit on the Judicial Committee of the Privy Council. The Privy Council is the highest court of several Commonwealth common law countries and British dependent territories. It also hears certain human rights cases from Scotland under devolution legislation and appeals from disciplinary tribunals of certain professional bodies sitting in other parts of the UK.

The UK is party to the EU and theEuropean Convention of Human Rights. Issues of Community law are determined by the Court of Justicof the European Union in Luxembourg. Issues under the Convention are determined by the European Court of Human Rights in Strasbourg.

Administrative Tribunals

These are judicial bodies with specialist jurisdiction to determine disputes between citizens and government or, in some cases between citizens, under particular legislation. They apply at national, Community and supra-national level.

Tribunals established by statute in the UK are supervised by the Administrative Justice and Tribunals Council (AJTC) which is established under the Tribunals Courts and Enforcement Act 2007.

Although general procedure is broadly similar to that of the courts, tribunal proceedings tend to be more flexible and informal. The Council has recently proposed a framework of standards and a set of model rules for tribunals.

Tribunals that are particularly important to intellectual property practitioners include the Comptroller-General of Patents et cetera and the Copyright Tribunal in the UK for British patents, trade marks, registered and unregistered designs, the Boards of Appeal within the Office for Harmonization in the Internal Market (Trade Marks and Designs) for Community trade marks and designs and at the European Patent Office for European patents.

Arbitration

Arbitration is an adjudicatory procedure whereby the parties refer their dispute to a tribunal (known as "the arbitrator") agreed by themselves or nominated in accordance with a procedure to which they both subscribe. The arbitrator determines the dispute in accordance with the general law after considering evidence presented by the parties. An arbitrator's jurisdiction derives entirely from the parties. It is applied in accordance with the Arbitration Act 1996 in England and Wales. Arbitration may be as formal as civil litigation with similar rules of evidence and procedure. Indeed judges of the High Court sometimes accept appointment as arbitrators. It may also be informal with evidence and submissions taken only in writing. The hallmarks of arbitration are contractual jurisdiction ensuring a measure of party control of the process, confidentiality and in most cases specialist expertise.

Alternative Dispute Resolution

This is a portmanteau term for a variety of dispute resolution processes, some consensual such as mediation and other adjudicatory such as expert determination and early neutral evaluation where a judge, counsel or other practitioner with expertise in dispute resolution makes assesses the merits of the case. Some of these procedures are very successful. The Uniform Domain Name Dispute Resolution Policy of theInternet Corporation for Assigned Names and Numbers has processed thousands of domain name disputes cheaply and expeditiously since 1999.