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Last update: 19-04-2006
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Alternative dispute resolution - Northern Ireland

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TABLE OF CONTENTS

First of all, from a general perspective, these are the different types of ADR in Northern Ireland? First of all, from a general perspective, these are the different types of ADR in Northern Ireland?
Ombudsmen Ombudsmen
Regulators Regulators
Arbitration Arbitration
Mediation Mediation
Neutral Evaluation Neutral Evaluation
Conciliation Conciliation
Expert Determination Expert Determination
You may in most of the situations have recourse to one or the other of these different types of ADR. To get more information, please select in the list hereafter the situation in which you find yourself: You may in most of the situations have recourse to one or the other of these different types of ADR. To get more information, please select in the list hereafter the situation in which you find yourself:
Conflicts between consumers and businesses Conflicts between consumers and businesses
Conflicts between businesses Conflicts between businesses
Conflicts between employees and employers Conflicts between employees and employers
Family conflicts Family conflicts
Conflicts between individuals Conflicts between individuals
Other specific situations Other specific situations

 

First of all, from a general perspective, these are the different types of ADR in Northern Ireland?

Ombudsmen

Ombudsmen { Ombudsman schemes exist to deal with complaints from ordinary citizens about certain public bodies or private sector services. The majority of recognised Ombudsman schemes are set up by statute. Others are voluntary non-statutory schemes set up on the initiative of the service sectors concerned.

Regulators

Regulators { A Regulator is defined as a body which has been established by Act of Parliament, but which operates at arm's length from government and which has one or more of the following powers: inspection; referral; advice to a third party; licensing; accreditation; or enforcement.

Arbitration

Arbitration { Arbitration is a procedure for resolving disputes privately, in which both sides agree to be bound by the decision of an independent third party, known as an arbiter.

Mediation

Mediation { Mediation can be used in a broad range of situations, including commercial, personal injury and clinical negligence cases. Mediation gives the party or parties in dispute the opportunity to reach a settlement by negotiation without a court hearing and with the help of an independent third party, a mediator, whose role is to help the parties come to an agreed solution.

Neutral Evaluation

Neutral Evaluation { Neutral Evaluation is where a neutral third party, probably an expert in the type of issues involved, provides a non-binding assessment of the merits of the case.

Conciliation

Conciliation { Conciliation is similar to mediation but the third party (conciliator) takes a more interventionist role.

Expert Determination

Expert Determination { Expert Determination is where an independent expert is used to decide the issue.

You may in most of the situations have recourse to one or the other of these different types of ADR. To get more information, please select in the list hereafter the situation in which you find yourself:

Conflicts between consumers and businesses

As already explained in "Alternative Dispute Resolutions - Community law", the European Commission has published on its website the list of a large number of ADR bodies for resolving consumer disputes in all the Member States. You will find in this list the practical information you need to decide whether to have recourse to one of these ADR schemes: its structure, its domain, the kind of procedure it follows, its cost and details.

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It may well be that you need to have recourse to an ADR body established in another Member State. To know precisely which body to go to, you may consult the web pages of the EEJ-Net or of the FIN-NET in case of a conflict concerning financial services.

In Northern Ireland, consumers faced with an unresolved dispute over goods or services have a range of routes they could choose to pursue. Contacting the trader or business directly is the way many complaints are resolved before they become disputes. There are a number of sources of help and advice, most notably from trading standards departments and Citizens Advice Bureaux. Some sectors have effective complaints-handling systems handled by a regulator, who also has an enforcement role, or a sectoral consumer council with no enforcement role. Many consumer problems are settled directly with the trader or organisation involved. Often consumers are required to use a trader's complaints procedure, where one exists, before proceeding to another form of dispute resolution.

Websites offering information and advice to the consumer range from official sites such as the Department of Trade and Industry's Consumer Gateway to independent sites that take an active role in helping the consumer to achieve redress. A website developed by the Department of Trade and Industry, local government, LACORS (the Local Authorities Coordinating Office on Regulatory Services) and the Trading Standards Institute, allows a consumer to register a complaint with their local trading standards department.

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Other sources of help and information (KB 95 pdf)

Conflicts between businesses

Parties who decide to use ADR to settle their dispute can select a method and a provider of their own choosing, depending on the source of the dispute. While ADR is not usually compulsory, clauses providing for ADR in contracts are binding as long as they are specific.

Before using ADR

It is not obligatory to seek legal advice when using alternative dispute resolution, but it is advisable. It is also advisable to ensure that any ADR provider used has accreditation and carries indemnity insurance. Any particular terms you require, such as confidentiality clauses, should be agreed between the parties and the ADR provider at the outset before undertaking ADR.

Funding

The services provided by Ombudsman Schemes and Regulators are funded either by the state or by the service sector concerned. Trade Arbitration Schemes are partially funded by membership fees of the businesses concerned and a fee from the users of the scheme. Otherwise the actual resolution process is paid for by the parties in dispute, either shared equally between them or on any other basis which they choose to agree. For procedures where ADR could be regarded as part of court proceedings - e.g. mediation, ADR can be funded by the Legal Aid Department of the Law Society of Northern Ireland if the party is eligible for civil legal aid. However, ADR processes which take place entirely independently of judicial proceedings are not funded.

Interaction with the Courts

Forms of ADR, such as mediation do not preclude the same issues from being resolved in court, unless a contractual agreement is subsequently signed. If the dispute is already in the court process, the court can suspend the court process to allow time to resolve the dispute through ADR.

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Types of Resolution

The resolution achieved through ADR can take the form of a decision or agreement by the parties, depending on the form of ADR used. Generally, methods such as mediation, conciliation and neutral evaluation are designed as aids to agreement. Expert determination, adjudication and arbitration schemes produce decisions though these may or may not be binding according to the circumstances and methods used. Some Ombudsmen make binding decisions, others make recommendations.

Arbitration is a binding process and parties who opt for it cannot subsequently go to court, except on very limited appeal grounds. For most ADR settlements (other than an arbitrator's decision) the parties retain the right to go to court if the other side fails to implement the agreed settlement. If the settlement is drawn up as a contractual agreement, the remedy would be to sue for breach of contract. Parties who reach a mediated agreement would not normally be able to rerun the same issues before a court. The way a decision can be enforced will vary according to the ADR method. Ombudsman Schemes have various methods of enforcing settlements. Some Ombudsman Schemes can enforce their decisions, most have some method of applying sanctions to organisations failing to comply with a decision.

In other ADR methods it is open to parties to have any agreed settlement drawn up as a legally binding contract. There are no statutory rights of appeal against ADR procedures that are designed to facilitate agreement. Some Ombudsman Schemes are open to judicial review.

Conflicts between employees and employers

The vast majority of workplaces have formal grievance procedures, most of which cover all employees and employers. The ACAS (Advisory, Conciliation and Arbitration Service) Code of Practice in Disciplinary and Grievance Procedures provides for best practice in the area of employer/employee disputes. ACAS provides an independent and impartial service to prevent and resolve disputes between employers and employees. ACAS conciliators have a statutory duty to promote settlements in a wide range of employment rights complaints which have been made, or could be made to an employment tribunal.

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Compromise agreements between an individual and their employer are another means of discharging legally a claim or potential claim. These can offer a fast and confidential route to settlement, but they are limited to a particular claim. Unlike ACAS-conciliated settlements, they cannot provide general, final settlement of all employment claims.

As well as promoting conciliation, the Government has recently established a new arbitration scheme through ACAS. The scheme is a voluntary alternative to employment tribunals for unfair dismissal claims. Resolution of disputes under the scheme is confidential, informal and quick. Disputes are determined by arbitrators appointed by ACAS. In line with commercial arbitration, the outcome is final with very limited opportunities to appeal. Any award is confidential.

Family conflicts

In Northern Ireland, participation in family mediation is voluntary and is undertaken to resolve disputes arising in the context of divorce or separation under the provisions of domestic legislation. The Government believes family mediation will only be successful if parties are free to choose whether or not to participate. The Government encourages the use of family mediation in appropriate cases. Not all cases can be resolved through family mediation. Family mediation is most often used to resolve disputes about matters relating to children and is less used for other matters. Providers of family mediation are often independent voluntary organisations. Family mediators are an independent self-regulated profession.

A pilot, court mandated, mediation scheme is currently in operation in two Family Care Centres (Belfast and Ballymena) and which is due for external evaluation in November 2004.

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Conflicts between individuals

Parties who decide to use ADR to settle their dispute can select a method and a provider of their own choosing, depending on the source of the dispute. While ADR is not usually compulsory, clauses providing for ADR in contracts are binding as long as they are specific.

Before using ADR

It is not obligatory to seek legal advice when using alternative dispute resolution, but it is advisable. It is also advisable to ensure that any ADR provider used has accreditation and carries indemnity insurance. Any particular terms you require, such as confidentiality clauses, should be agreed between the parties and the ADR provider at the outset before undertaking ADR.

Funding

The resolution process is paid for by the parties in dispute, either shared equally between them or on any other basis which they choose to agree. For procedures where ADR could be regarded as part of court proceedings - e.g., mediation, ADR can be funded by the Legal Aid Department of the Law Society of Northern Ireland if the party is eligible for civil legal aid. However, ADR processes which take place entirely independently of judicial proceedings are not funded.

Interaction with the Courts

Forms of ADR, such as mediation do not preclude the same issues from being resolved in court, unless a contractual agreement is subsequently signed. If the dispute is already in the court process, the court can suspend the court process to allow time to resolve the dispute through ADR.

Types of Resolution

The resolution achieved through ADR can take the form of a decision or agreement by the parties, depending on the form of ADR used. Generally, methods such as mediation, conciliation and neutral evaluation are designed as aids to agreement. Expert determination and adjudication produce decisions though these may or may not be binding according to the circumstances and methods used.

For most ADR settlements the parties retain the right to go to court if the other side fails to implement the agreed settlement. If the settlement is drawn up as a contractual agreement, the remedy would be to sue for breach of contract. Parties who reach a mediated agreement would not normally be able to rerun the same issues before a court. The way a decision can be enforced will vary according to the ADR method. It is open to parties to have any agreed settlement drawn up as a legally binding contract. There are no statutory rights of appeal against ADR procedures that are designed to facilitate agreement.

Other specific situations

Other specific situations (eg relations with public authorities, health services, solicitors, notaries etc) (KB 121.7 pdf)

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Last update: 19-04-2006

 
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