1A - ADR Flashcards
ADR - negation
- all civil claims
- two parties (themselves or their legal reps.) discuss the issues to try and reach an agreement WITHOUT going to court
ADR - negation - advantages
- no need for lawyers
- cheap
- informal (flexible)
- ownership of decision (builds relationships)
ADR - negation - disadvantages
- may not get an outcome
- needs communication
- imbalance of power
- no legal/subject knowledge
ADR - negation - basic facts
- no fixed procedure, the parties will state their arguments and usually involves each of the parties reaching a compromise
- no costs involved (unless legally represented)
- Quickest and cheapest method of resolving disputes
- If an agreement cant be reached, parties may go ahead and inform solicitors
ADR - arbitration
- used for disputes relating to business contracts
- parties both refer to a third party - the arbitrator
- the arbitrator will normally be a person with both legal and specialist knowledge
ADR - arbitration - arbitration clause
- This is known as a Scott v Avery clause.
- Where this type of clause has been included within a contract, the court will refuse to deal with any dispute unless and until it has gone to arbitration.
ADR - Arbitration Act 1996
sets out the powers of the parties- Hearing is carried out in private at a time and place of mutual convenience, Each party puts forward its own arguments and evidence, either in writing or orally. The arbitrator makes the final decision, which is binding on the parties and so is enforceable in the court, An award by an arbitrator can be challenged in the courts for serious irregularity in the proceedings or on a point of law
ADR - arbitration - advantages
- binding decision
- independent arbitrator
- more formal
ADR - arbitration - disadvantages
- more formal - less flexibel than other forms of ADR
- fees can be expensive (and long)
- may have to use arbitration - Scott v Avery clause - excludes court
ADR - conciliation
- used in industrial disputes, disputes concerning children
- a neutral third party, a conciliator (who is usually trained or experienced in this type of work eg ACAS) is used to help resolve a dispute
- Conciliator can make suggestions but the decision is up to parties
- if no agreement is reached = matter may be taken to court or tribunal
ADR - conciliation - advantages
- empowers parties
- builds relationships
- doesn’t exclude court
- subject expertise
ADR - conciliation - disadvantages
- may not get an outcome
- imbalance of parties
- requires skilled conciliators
ADR - mediation
- used widely in domestic disputes like a divorce but is also used in business disputes
- a neutral third party, a mediator, usually trained or experienced in this type of work, helps to resolve a dispute. Act as a go between
- mediator can’t make any suggestions
ADR - mediation - advantages
- convenient
- informal
- low cost
- subject expertise
ADR - mediation - disadvantages
- may not get an outcome
- needs compromise and communication
- needs a skilled mediator
- lack of legal expertise
