On Tuesday, The Times reported that increasing numbers of non-Muslims are turning to Sharia courts to resolve civil disputes. The Muslim Arbitration Tribunal claims as many as 5% of its cases involve non-Muslims who use the courts because they are "less cumbersome and more informal than the English legal system."
Turns out 5% equates to a meagre 20 cases this year. Still, the story does raise big legal questions: First, concerning the validity of religious tribunals, whose rulings are legally binding under the Arbitration Act (provided the parties agree to that condition before arbitration begins). Second, regarding state entanglement with religion, since it falls on the state to enforce the Sharia rulings should a party failure to comply with one. And, third, respecting resolution of disputes outside the courtroom.
In the hope of demystifying Alternative Dispute Resolution ("ADR"), here are 10 things everyone ought to know:
1. What is ADR?
ADR is a catch-all term used to describe different methods to resolve legal disputes outside of court.
2. How do ADR schemes work?
Arbitration: An impartial and independent third party decides how to resolve the dispute. In most cases, the arbitrator's decision is binding and cannot be challenged in court. The arbitrator's decision must remain secret unless the parties agree otherwise. The cost varies: ACAS arbitration is free to employers and employees; IDRS schemes are either free or require payment of a registration fee, which is refunded if a party is successful; other arbitration schemes can be expensive, but it depends on the nature and complexity of the dispute.
Adjudication: Similar to arbitration, but usually not binding on the person making the complaint. Most adjudication schemes are free to consumers.
Mediation/Conciliation: An impartial and independent mediator or conciliator helps the parties negotiate a resolution to the dispute. If the parties do not want to negotiate in person, a mediator may act as go-between. Everything that occurs during mediation or conciliation remains confidential and cannot be used in a later court hearing. The cost varies: in some instances (usually conciliation), it is free; in others, it can get expensive - again, everything depends on the nature and complexity of the dispute.
Negotiation: The simplest form of ADR. Negotiations may be held with or without prejudice; the latter prevents evidence of negotiations being used in court.
Ombudsmen: Ombudsmen investigate and resolve complaints about public and private organisations. Members of the British and Irish Ombudsman Association are guaranteed to be independent and impartial from the organisations they investigate. Most ombudsmen expect you to exhaust an organisation's internal complaints procedure before seeking help. Most ombudsmen decisions are not legally binding on the complainant. All ombudsman schemes are free.
3. Is ADR binding or non-binding?
It depends on the form of ADR used. Generally, arbitration is binding on both parties to the dispute; mediation, conciliation, and negotiation are non-binding; and adjudication and ombudsmen schemes do not bind the complainant, but will be binding on the other side.
4. If I use ADR, do I need a solicitor?
Just as you would seek advice when going to court, you should in most cases seek advice when choosing and pursuing ADR.
5. Who adjudicates ADR?
Again, this depends on the form of ADR used. See above.
6. Where does ADR take place?
Usually a neutral place acceptable to all parties involved in the dispute.
7. How much does ADR cost?
Many ADR schemes are free, but some are not. It all depends on your circumstances and the nature of the dispute. See pages 16-17 of the Alternatives to Court Leaflet published by the Community Legal Service.
8. How long does ADR take to complete?
Each case is different and it depends on the type of ADR you use. But, generally disputes are resolved faster using ADR than in the courtroom.
9. Is ADR confidential?
10. How do I decide whether to use ADR and which type should I choose?
Everyone's situation is different, so you should discuss this with a solicitor. And, as a starting point, read pages 3-6 of the Alternatives to Court Leaflet published by the Community Legal Service.
** Additional Information & Advice **
You can obtain further information about ADR on FindLaw.
Depending on the circumstances of your case, however, it may be a good idea to speak with a solicitor who specialises on ADR. You can be matched with a solicitor in your area for free via solicitor matching services, which can also help you to understand the best course of action for your situation and whether you are ready to hire a solicitor.