ADR

Question 1

What is ADR

Answer 1

Alternative dispute resolution is the resulting of a dispute without having to go to court

Question 2

Who is ADR encouraged by and where

Answer 2

It is encouraged by the Civil Procedure rules where part 1 contains an overriding objective that the judges have to deal with cases justly and fairly

Question 3

Name three general advantages of ADR

Answer 3

• Speed: ADR is usually much quicker than proceedings in courts
• Privacy: The partys may want to avoid bad publicity and the media attention that comes with a court appearance
• Cost: ADR saves government money (less likely to need legal aid as no need for legal representation) and frees up valuable resources within the court system so they can focus on the more important and serious legal issues

Question 4

Name two general disadvantages of ADR

Answer 4

• Lack of legal expertise: where a dispute involves difficult legal points an arbitrator or mediator is unlikely to have the same expertise as a judge
• No system of precedent: It may not be easy to predict the outcome of a case decided through arbitration. Arbitrators neither create nor are bound by precedent
• A court may still be requires: with mediation and conciliation it is possible no agreement can be reached

Question 5

What does ADR aim to achieve

Answer 5

to provide a forum for the parties to work toward a voluntary consensual agreement as opposed to having a judge or other authority decide the case

Question 6

What are the 4 types of ADR

Answer 6

Negotiation, Mediation, Conciliation and Arbitration

Question 7

What is negotiation

Answer 7

anyone who has a dispute with another person can always try to resolve it by negotiating directly with them

Question 8

Two advantages of negotiation

Answer 8

• Speed

- Costs

Question 9

Two disadvantages of negotiation

Answer 9

• lack of legal expertise

- imbalance off power

Question 10

What is mediation

Answer 10

Provided by a neutral person who will help the parties reach a compromise solution. Mediator will not usually offer an opinion unless required to do so

Question 11

Two advantages of mediation

Answer 11

• Lack of formality: not complicated

- Cost

Question 12

Two disadvantages of mediation

Answer 12

• imbalance of power

- enforceability: unless both parties agree the settlement is not binding

Question 13

What is conciliation

Answer 13

involves a third party taking a more active role in suggesting ways to come to a settlement. Conciliator will organise conciliation at a time and place convenient to all parties

Question 14

Two advantages of conciliation

Answer 14

• Pro active: conciliator is independent of the parties and has the power to advise and suggest
• Expertise: the conciliator has expert knowledge and experience of all types of disputes under conciliation

Question 15

Two disadvantages of conciliation

Answer 15

• Lack of legal expertise

- Imbalance of power: one or both parties may feel the conciliator is not neutral in their comments

Question 16

What is arbitration

Answer 16

Private process by which an independent arbitrator resolves a dispute by making a legally binding decision. Most formal method of ADR. Resolution through a neutral third party who has authority to bind the parties in terms of the decision

Question 17

Two advantages of arbitration

Answer 17

• Expertise: specialist knowledge of the relevant area

- Convenience: the parties agree on the time

Question 18

Two disadvantages of arbitration

Answer 18

• Inconsistencies in decisions: arbitrator is not bound by rules of judicial precedent
• Costs: an arbitrator may charge high fees