ADR Flashcards
what is negotiation?
the process of trying to come to an agreement.
what are advantages of negotiation?
1) can be conducted by the parties themselves, no need to use lawyers or others in the process
2) can be used at any time in the dispute from beginning right up to court hearing
3) cheapest method of resolving disputes, particularly where parties do negotiation themselves
4) can include agreement about future business deals, this cannot be done where the court makes decision
what are disadvantages of negotiation?
1) may not be successful so other ADR methods or court proceedings have to be used
2) not suitable where parties are very antagonistic towards each other as they will not be able to co-operate to find solution
3) if there are repeated unsuccessful attempts at negotiation, it may prolong the whole issue
what is mediation?
using a neutral person in a dispute to help the parties come to a compromise solution
what is the role of a mediator?
to consult with each party and see how much common ground there is between them. they will explore position with each party looking at their needs and carrying offers to and fro while keeping confidential his job to act as a ‘facilitator’ = will not give own views but can be asked for opinion of the merits.
what is conciliation?
similar to mediation but the third person is expected to suggest grounds for compromise and the possible basis for a settlement. no authority to seek evidence or call witnesses.
what are advantages of mediation and conciliation?
1) for both: parties in control and can withdraw from the process at any point. compromise cannot be reached without agreement of both parties
2) decision does not need to be a strictly legal one, it is most likely to be based on commercial common sense and compromise
3) makes it easier for firms to continue to do business together in the future, may also include agreements about future business between them. this can not happen in court as it is only concerned with present dispute
4) avoids adversarial conflict of the court room and the winner/loser result of court proceeding, everyone wins
what are disadvantages of mediation and conciliation?
1) no guarantee matter will be resolved , necessary to go to court if this fails so there is additional cost and delay to resolution.
2) success requires skilled mediator or conciliator with accumulated experience. if this is not present, it can become a bullying exercise where weaker party is forced into a settlement.
3) amount paid in mediation are often lower than amounts agreed in other settlements and amount awarded by court
what is arbitration?
parties agree to let a third party make a binding decision.
what are advantages of arbitration?
1) parties can choose own arbitrator, can decide whether matter is best dealt with by technical expert, a lawyer or professional arbitrator
2) hearing time and place arranged to suit both parties
3) procedure is flexible= informal and relaxed hearing than court
4) private, no publicity
5) resolved more quickly than court hearing
6) cheaper than court
7) award is final, enforced through court
what are disadvantages of arbitration?
1) legal aid not available, disadvantage an individual in a case against a business
2) unexpected legal point may arise, not suitable for decision by non-lawyer
3) professional arbitrator= fees expensive
4) expensive if opt for a formal hearing where witnesses are used and lawyers
5) rights of appeal are limited
6) delay for commercial and international arbitration may be nearly as great as those in court
