1A.1.3 Alternative Dispute Resolution Flashcards
What is the role of ADR?
To resolve disputes without having to go through the court or tribunal process.
What are the four types of ADR?
- Negotiation
- Mediation
- Conciliation
- Arbitration
Negotiation
The process of trying to come to an agreement. It is the easiest and least confrontational form of ADR.
How can negotiation be carried out?
- Face-to-face talking
- Writing
- Phone or e-mail
- Any other suitable method
Is negotiation expensive?
If the negotiation is carried out by the parties, it should not cost them anything, but the involvement of lawyers will inevitably involve cost.
Advantages of negotiation
- Cheaper
- Quicker
- Private – Not open to the public
- Could include agreements about future business deals.
- Solicitors could be brought in to assist with negotiation.
Disadvantages of negotiation
- Mistrust between parties
- Not enforced by court
- May be unsuccessful
- May prolong the case, leading to emotional strain.
- Some parties may be unwilling to co-operate with each other.
Mediation
The process of using a neutral person in a dispute to help parties to find a compromise solution.
Who is the mediator?
A trained person who acts as a go-between in an attempt to help people in a dispute come to an agreement.
How is mediation carried out?
The parties will usually be in separate rooms or locations, and the mediator acts as a facilitator between the parties to put forward points and opinions.
The parties have control over the process, so they can stay as long as they wish and can withdraw at an time. The mediator will not offer an opinion to either party unless asked to do so.
A successful mediation depends on both parties embracing the concept and actively participating.
Eventually it is hoped that the parties themselves will reach a compromise and agreement acceptable to both.
Even if the whole matter is not resolved, this type of procedure may be able to narrow down the issues so that if the case does go to court, it will not take so long.
Centre for Effective Dispute Resolution (CEDR)
A charity which offers mediation services. It promoted the service as an effective form of alterative dispute resolution and provides training for mediators.
What branch of law does mediation have to be used before a case can be started in the civil courts system?
Family disputes over children and financial issues. The parties have to show that they have attempted the process before starting court proceedings.
Advantages of mediation
- Cheaper
- The parties are in control
- The mediator is neutral (no bias towards parties)
- The mediator will encourage proposals to be reached.
- Allows parties to hear the other party’s views in a controlled environment.
Disadvantages of mediation
- If parties refuse to participate in good faith, mediation will not work.
- Parties may need additional legal advice, leading to more fees.
- Another session may need to be scheduled, increasing cost and time.
- Dispute might not be resolved, especially if it is complex with lots of different elements.
- Mediator may show bias towards a certain side (e.g. allowing one party to speak more.)
Conciliation
The use of a neutral person to actively participate in resolution between the parties.
What is the role of a conciliator?
They play an active role in assisting parties to resolve their dispute. The parties still have control over the process and may withdraw at any time. However, the conciliator will make suggestions, such as areas for compromise and a possible basis for settlement.
Advisory Conciliation and Arbitration Service (ACAS)
A an example of a conciliation service:
- It tries to encourage the parties in an employment dispute to reach a settlement before a claim can be issued in an employment tribunal.
- It also gets involved in industrial disputes – for example, if a trade union calls strike action, ACAS will attempt to conciliate between the parties to reach a compromise.
Advantages of conciliation
- The parties are in control and can withdraw at any point in the process.
- The decision does not need to be legally binding.
- Avoids having winners and losers. - With mediation, everyone wins.
- Easier to make future business deals.
Disadvantages of conciliation
- No guarantee the matter will be resolved, causing additional cost and delay.
- “Leaning on people is the only way that you will get a settlement. If you lean on two halves of a seesaw, it is usually the weaker half that will break and this is where you should apply your effort”.
- Amounts paid in these settlements are often lower than the amounts that would have been awarded in court.
Arbitration
Where both parties voluntarily agree to let their dispute be left to the judgement of a neutral arbitrator (or a panel or arbitrators).
Who is the arbitrator?
An expert who acts as a judge to determine the outcome of arbitration.
Which Act of Parliament governs arbitration?
Arbitration Act 1996
Companies can put an clause in a contract to agree on arbitration if there are any disputes arising. What is this called?
Scott v Avery clause
How is the arbitrator chosen?
The initial agreement for arbitration will either name an arbitration or provide a method for choosing one.
If there is no selection procedure, a court may appoint an arbitrator.
