« Previous | Contents | Next »
Listen
Section 1: Introduction
What is this booklet about?
Going to court or a tribunal (often called 'litigation') to solve a problem can be expensive and off-putting. But there are other options. This booklet tells you what they are, how they work, and where you can get further information.
There are many alternative ways of sorting out complaints and legal problems. Together they are often called 'alternative dispute resolution' ( ADR) and include things like mediation, ombudsmen schemes and arbitration. With most types of problem, courts encourage people to try these sorts of schemes first before they resort to litigation.
This booklet mainly covers schemes and organisations in Scotland although it does give details of some organisations which cover the whole of the United Kingdom. A similar leaflet is produced by the Community Legal Service in association with Advice Services Alliance, covering England and Wales: we are grateful for permission to reproduce portions of that leaflet.
Who is this booklet for?
Anyone who wishes help or advice on resolving a complaint or legal problem.
Why use an alternative dispute resolution scheme instead of going to court?
Alternative dispute resolution schemes are not meant to replace the courts in all cases. But they can have advantages over going to court. The advantages include:
- being more flexible;
- solving your problem faster;
- being less stressful; and
- costing you less money.
If you have a problem with a person or organisation you deal with regularly (a neighbour, for example) alternative dispute resolution can mean a better, longer-lasting solution to your problem.
You can also use alternative dispute resolution schemes as well as going to court or a tribunal. For example, mediation can help narrow down the issues that divided people, and make it easier for you to reach an agreement or for a sheriff or judge to make a decision. Remember that either side in a disagreement can suggest using an alternative dispute resolution scheme to solve your problem.
Do I need a solicitor to use alternative dispute resolution?
Just as you would seek advice when going to court, you should, in most cases, seek advice when choosing an alternative dispute resolution method and when reaching agreements. Advice can also be useful when you are writing a complaint letter or using a formal complaints procedure.
You can get independent advice from a number of sources, for example:
- Citizens Advice Bureau;
- local authority;
- housing advice centre;
- local Law Centre; or
- solicitor.
See ' Other Sources of Help' at the back of this booklet for details of other organisations that can offer advice.
How do I decide whether to use alternative dispute resolution?
How you choose to solve your problem depends on:
- the result you want;
- how important it is to you;
- what you can expect to achieve;
- how you want to go about solving your problem;
- how willing the other side is to try and solve the problem; and
- how quickly you need to sort it out.
The result you want
You can get different things from going to court than from alternative dispute resolution. By going to court, you might get:
- an order that something be done or stopped;
- compensation; or
- a judgement from the court about who is right and who is wrong.
By using an alternative dispute resolution, you might get:
- a change in the way a person or organisation behaves;
- a promise that a person or company won't do something;
- getting something you own fixed;
- getting something you own replaced;
- an apology;
- an explanation for what happened to you;
- a mistake corrected;
- money which is owed to you; or
- compensation (for example, for an injury).
What you can expect to achieve
What you want to achieve may not be possible for your particular problem, and it's important to know this before starting out. For example, you might want to use mediation to get a full explanation of what went wrong. But if the other side isn't willing to take part in mediation, this won't be possible.
Another important factor is identifying who the other side is - who is responsible for what happened. In some cases this is straightforward, but in others (some consumer disagreements, for example), it can be difficult to identify not just the person who gave you the service or made the decision, but who is legally responsible.
In cases of discrimination at work, for example, employers are often responsible for what their employees do. In the case of a complaint about neighbour nuisance the neighbour or the landlord might be the right person to approach. If you are not sure who is responsible, an advisor from one of the organisations listed at the back of this booklet should be able to help you.
You will need to find out if the alternative dispute resolution service can produce the result you want. For example, if you have been injured during medical treatment and your main priority is to get compensation, you are unlikely to get that through the NHS complaints procedure or the Scottish Public Services Ombudsman. But if you feel it is most important to bring the problem to people's attention, so that the same thing doesn't happen to someone else, you will most likely get this by using the Ombudsman.
How to go about solving your problem
No single form of dispute resolution can give you everything you want. The result is only one thing to think about - how the problem is resolved can be just as important. Things to think about include:
- what it will take to get your problem sorted out;
- how much it will cost;
- how it will affect your life, including your family and your work; and
- how much time you can spend on it.
For example, you might feel it is important to be able to have a hearing or meeting where you can state your case in person. Mediation can usually offer this. Or you might feel that you don't want to go to a hearing but would rather have the matter dealt with on paper (a 'documents only' process).
When thinking about your options, remember to take into account your own costs and expenses, such as travel, childcare and time off work.
How quickly you want your problem solved
The time it takes to use an alternative dispute resolution process can be a major factor. Some matters are extremely urgent and important and going to court is the only safe option (for example, if you are in danger of losing your home). You can, however, follow up court action with another process to deal with other areas of a problem.
Other things to think about
Remember that some methods have to be the last thing you try, not the first. This is because those methods are 'binding' (which means that both sides, or sometimes just one side, must do what they are told to or agree to). If you use a binding method, you can't go on and use a different method if you are not happy with the result. Also, in some cases, you can't use two methods at the same time. For example, you cannot take your problem to court and to an ombudsman at the same time.
Remember that for some types of problem there is a time limit for taking a case to court or to another dispute resolution process. So if you are using one process, you need to be sure that it will not put you beyond the time limit for taking your case elsewhere if you need to.
How do alternative dispute resolution schemes work?
There are many different types of alternative dispute resolution scheme. The one (or ones) you choose to use will depend on:
- how you want your problem dealt with; and
- what sort of problem you have. (Not all methods are available for all kinds of problems.)
There are explanations of how different types of scheme work in the following sections. Details of the main dispute resolution services are given in the section on ' Dispute Resolution Services'.
How much does alternative dispute resolution cost?
When working out how much it will cost to deal with a problem, you need to take into account:
- fees or charges for the alternative dispute resolution service (if it is not free);
- your own expenses, including things like travel and photocopying;
- the cost of legal help and advice; and
- the risk of you not getting what you want.
For example, you need to know if you will be responsible for paying the other side's legal fees and other expenses if you lose. And you need to know if you can expect to get your costs and expenses paid if you win. The principle that applies in UK courts is generally that the 'loser' pays the other side's expenses as well as their own. However, in alternative dispute resolution, the general principle is that each side pays their own expenses.
Mediation costs can vary, depending on the type of mediation. For example:
- community mediation is usually free to local residents;
- child-focused mediation is available free of charge, although contributions towards the cost are welcomed. Mediation on finance and property issues may involve a charge for these services. Some services have a scale of fees, so what you pay depends on how much money you have. You may be able to get help with some of the costs of family mediation through Legal Aid; and
- commercial mediation providers make a charge depending on the complexity and value of the claim.
Sometimes, the organisation you are complaining about might pay all the costs because they are the financially-stronger side. Most consumer arbitration schemes run by the Chartered Institute of Arbitrators cost between £10 and £100, but some are free. And if you win your case, you will get back any fee you have paid. Ombudsmen services are free but the organisation you are complaining about may have to pay a fee to be a member of the ombudsman scheme.
Expenses
You may have to pay for travel expenses, childcare costs, and time off work if you have to go to a hearing. Photocopying evidence can be expensive, so don't forget this cost if you are using a process such as arbitration that relies on you providing many documents.
Ombudsman schemes tend to be the least expensive to use. Community mediation doesn't cost much either. It usually involves face-to-face meetings, so you may have to pay travel and other expenses, but you may be able to get these back as part of a mediated agreement if both sides agree to this.
Can I get help with the costs?
Mediation
If you are in receipt of, or are eligible to receive advice and assistance or civil legal aid, then depending on your circumstances all or part of the costs of mediation in family and non-family cases may be met for you. This will apply only to your own share of the total mediation fee, and not any share to be borne by an opponent or opponents.
'Family cases' are actions involving husband and wife or, in cases relating to children, the parents of these children. Mediation is available both from Family Mediation Scotland and from accredited solicitors who are members of CALM (Comprehensive Accredited Lawyer Mediators)
In 'non-family cases' there is no restriction on the type of case that can be considered suitable for mediation. In such cases, requests for mediation involving mediators accredited by the Association of Mediators, the Centre for Dispute Resolution or the Law Society of Scotland will normally only be considered. However, other accredited specialists can be considered.
It is normally expected that parties will enter into a legally binding agreement at the conclusion of the mediation.
Arbitration
The costs of arbitration may be met by legal aid only where there has been a referral by the court to arbitration in proceedings for which the person seeking cover for those costs is in receipt of legal aid.
« Previous | Contents | Next »