ADR Flashcards
Describe the process of negotiation and how it can be used to resolve a civil dispute
Negotiation is a very informal method of ADR. It involves the two parties only, who try to resolve their civil dispute through making offers, often involving money. An example of a civil dispute that can be resolved using negotiation is a negligence claim for personal injury. The process of negotiation is fairly cheap and quick. There are no costs of going to court or any additional costs of using a lawyer, which suggests that the process is private, as no more than the two parties are involved. However, if the two parties are unable to find any common ground between them and fail to come to an agreement amongst themselves, the case could end up going to court. In cases like this, negotiation will only be completed “on the court steps”.
Describe the process of mediation and how it can be used to resolve a civil dispute
The process of mediation involves both parties and a third party. who is also known as a mediator. A mediator is an expert in the field of the dispute, and their job is to help the parties find common ground. Examples of civil disputes that can be resolved using mediation are business disputes and family disputes. During the process, the mediator cannot express their own opinions, but they can comment on the strengths of each party, without informing the other party of these. This helps to ensure the process is without prejudice and confidential. Overall, mediation is cheaper than going to court, however, failure will result in the case going to court.
Conciliation
Conciliation is similar to, or some might say an extension of mediation. It involves the two parties and a neutral third party, also known as a conciliator. In this process, the conciliator plays a more pro-active role, so conciliation is appropriate and useful for parties who have little knowledge of the process. The conciliator is responsible for suggesting grounds for compromise and has no authority to seek evidence or call witnesses. An example of a civil dispute that can be resolved using conciliation is an industrial dispute. If conciliation fails, the case will have to go to court.
Describe the process of arbitration and how it can be used to resolve a civil dispute
Arbitration is an amicable form of ADR where the parties agree to submit their claim to a private arbitrator. It is governed by the Arbitration Act 1996, and it involves the two parties choosing to refer their case to a pre-designated independent third party. in a business dispute, if the parties decide to use arbitration, it won’t damage any business relationships. Arbitration is cheaper than going to court, as the parties represent themselves, and a decision made by an arbitrator is legally binding. However, this can be challenged under S.68 of the Arbitration Act 1996.
Describe the process of employment tribunals and how it can be used to resolve a civil dispute
Unlike other methods of ADR, which an optional alternative to court, tribunals must be used when available. Administrative tribunals deal mainly with disputes arising over employment rights, called employment tribunals. Tribunals usually sit with a panel of 3 including a legally qualified chairman and two lay members who are experts in the field of the issue. Some tribunals sit with a single tribunal judge. The process involves both sides explaining their argument to the panel, who then decide the outcome, which is legally binding. Tribunals reduce costs and delay for the parties involved.
