ADR Flashcards
What is ADR?
Alternate methods of dispute resolution that usually save time, reputation (private usually), stress and money without using the courts.
Negotiation
Negotiation can be done over the phone, in writing, in person, over email or through solicitors.
Common before and during trial and can do after-reach a settlement before the court or tribunal awards a compensation amount.
Anything that is discussed is ‘without prejudiced’ so it cannot be used as evidence if it goes to trial.
Settlement reached- the court proceedings will need to be formally closed by submitting a consent order.
Advantages of Negotiation
Cheaper- can be done without a lawyer. MORE PERSONAL AND FLEXIBLE
Completely private- appeals to businesses.
Quicker than court.
Flexible
Disadvantages of Negotation
If solicitors are involved- cost element is added.
Longer the negotiation- more cost (with Solicitor).
Only works if both parties cooperate.
Businesses can have advantages with lawyers.
No guarantee it will work.
Compromise- maybe not get as much compensation.
Mediation
Where a neutral mediator helps the parties to reach a compromise solution.
They consult to both parties to see bow much
common ground and do not add own opinions.
Can be asked to give merits to find agreement.
Advantages of Mediation
Cheaper-£2000
Quicker
Private
Flexible- can choose how it is carried out and are in control and make the decisions.
Companies who are used to negotiating contracts with each other are most likely to benefit from this approach.
Informal and personal-freedom
Disadvantages of Mediation
Have to be cooperative.
Businesses who negotiate contracts may have advantage.
Costs could be added £20000 to £500000 if go to court.
Legal aid is not necessarily given- disadvantage.
A compromise-so may not receive full/ as much compensation.
Conciliation
The Conciliator holds a more active role and gives advice
Arbitration
An arbitrator is selected by parties/government to work as a judge, it is more informal than court but that depends on parties wishes.
Parties submit their issues raised and a panel of arbitrators will decide on a verdict.
Many commercial contracts contain an arbitration clause which states that if a dispute was to arise, it will be settled by way of arbitration.
Scott v Avery clause.
Advantages of Arbitration
Low cost Informal-represent themselves Personal-freedom to choose how and who Flexible- dates you can choose Can choose appropriate arbitrator to get most benefit and how many- expert knowledge. Private Quicker Not as much of a compromise- more reasonable compensation.
Disadvantages of Arbitration
If parties cannot agree on who- government appoints.
No guarantee it will be resolved.
Legal fees if used cab add significantly to cost- defeats purpose.
No legal aid given-disadvantage.
