ADR Flashcards
What are the 4 types of ADR
Conciliation
Mediation
Negotiation
Arbitration
What is meant by negotiation?
Negotiating and reaching agreement between two parties
What are advantages of negotiation?
Completely private
Quickest and cheapest method of settling a dispute
Can be done without lawyer in first instance
Done without prejudice- can`t be used in evidence if case goes to court
Are solicitors involved in negotiation?
Do not have to be
Parties may bring one in if compromise can`t be reached
Solicitors try and negotiate settlement on behalf of their respective parties
Solicitor involvement= cost
Can negotiations take place during trials at court?
Quite common for parties to negotiate right up until trial and even during it
Some parties even negotiate after trial to reach a a compensation amount
How can negotiations take place?
Face to face, over the phone, via internet email or writing
What is needed once a settlement has been agreed between parties through negotiation?
Court proceedings will need to be formally closed by submitting a consent order
What is meant by mediation?
Where a neutral mediator helps parties to reach compromise
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 the position with each party, looking at needs and carrying offers whilst keeping confidentiality
Can a mediator give their opinion?
Won`t usually tell parties their own view but can be asked for opinion which may be given to try and reach agreement
When can mediation be used?
Only suitable if there is hope that parties will co operate
Companies used to negotiating contracts will benefit from this approach
What is a formalised settlement conference?
More formal method of mediation
Involves a min-trial where each side presents its case to a panel made up of decision-making executives from each party and a neutral party
Executives with help of neutral advisor will evaluate the two sides positions and try reach agreement
If executives cant agree then the neutral advisor will act as mediator
If whole matter isnt resolved, the process will narrow down issues so process of case in court won be as long
What is conciliation?
Very similar to mediation as third party helps resolve dispute
Conciliator plays a more active role- expected to suggest grounds for compromise and possible basis
Conciliator will provide impartial opinions on legal disputes
What are the advantages of mediation?
Decision isn`t a legal one- based more on commercial common sense and compromise
Makes it easier to do business with each other in future
Avoids adversarial conflict in court room
Win-win situation rather than court being win-loss
Private and informal- no media to “air dirty laundry”
Cost- mediator is usually £2,000 a day where courts can be over £500000
What are the disadvantages of mediation?
No guarantee matter will be resolved and case can still end up in court
Decision is not legally binding
Amount paid to wronged party is usually considerably less than that awarded in court
Both parties have to agree to mediation
Parties are in control so can leave at any time
What is arbitration?
Use of ADR without going to courts
What is the Scott v Avery clause?
Clause in many commercial contracts stating if a dispute arises, it will be settled by arbitration
How do parties go about getting an arbitrator? How many can be used?
Parties are free to agree on number of arbitrators- panel of 2 or 3 can be used
If parties can`t agree on number, one should be appointed
Parties are free to agree on procedure of appointing an arbitrator
In many disputes, arbitrator will be someone who has expertise in particular field/ if dispute involves point of law then the arbitrator will usually be a trained lawyer
What happens in an arbitration hearing?
Most cases are conducted either orally or in writing- parties may opt for paper arbitration where parties put points in writing and submit to arbitrator
… Arbitrator will then read all documentation and make decision
Alternatively, parties may send documents to arbitrator and before they make decision, parties will attend hearing where they make oral submissions for their case
Witnesses can be called
What is the Award?
The decision made by arbitrator is called an award and is binding
Can be enforced through the courts if necessary
Decision is final
What are the advantages of arbitration?
Flexible
Parties have freedom to decide on arbitrator, procedure, formality- best dealt with by lawyer, technical expert
Hearing times and venue can be arranged by parties- makes it accessible and not interfere with working life etc.
Private- no publicity
Quicker and cheaper than court
Award is final and binding
What are the disadvantages of arbitration?
Legal aid is not available- will affect those fighting against big businesses and create inequality/ legal aid would have been available in court therefore could afford representation
Fees of expert arbitrators- professional arbitrator usually expensive
Delays are as big as courts currently
If parties decide not to use professional arbitrator and point of law arises, they may not have necessary skills to interpret it
What are the roles of tribunals?
Enforce rights granted through social and welfare legislation
Different rights such as:
Right to payment is someone is made redundant
Right not to be discriminated against because of race, age, sex and disability
Right of immigrants to have a claim for political asylum heard
Right to mobility allowance for those disabled
Can tribunals be heard as well as court proceedings?
No, they must be used instead of court proceedings
Created in order to give people method of enforcing entitlement to social rights
What is the Tribunals, Court and Enforcement Act 2007?
Reformed the tribunal system- created a unified structure with a First-Tier Tribunal to hear cases of first instance and Upper Tribunal to hear appeals
What is the First Tier Tribunal? What are the chambers?
Operates in seven chambers-
Social Entitlement Chamber- child support, criminal injuries compensation, gender recognition
Health, Education and Social Care Chamber- deals with appeals against continued detention of those in mental hospitals and special education needs
War Pensions and Armed Forces Compensation Chamber
General Regulatory Chamber
Taxation Chamber
Land, Property and Housing Chamber
Asylum and Immigration Chamber
One tribunal operates separately- Employment Tribunal
What is the Upper Tribunal? What are the chambers?
Divided into 4 chambers: Administrative Appeals Chamber- hears appeals from Social Entitlement chamber, Health, Education and Social Care Chamber ad War Pensions and Armed Forces Compensation Chamber Tax and Chancery Chamber The Lands Chamber The Asylum and Immigration Chamber
There is a further possible appeal route to Court of Appeal and from there the Supreme Court
What are cases in the First Tier Tribunal heard by?
Tribunal Judge
For some cases, 2 lay members will sit with judge to decide
These lay members have expertise in the particular field
Who hears employment tribunals?
Two lay members- usually one from an employee`s organisation to give clear understanding of employment issues
What is the procedure involved in tribunal cases?
Both sides must be given opportunity to present case
Some involve witnesses and cross examination
Funding for representation is available in only a few tribunals so most applicants represent their own case
Decision of a tribunal is binding
What are the advantages of tribunals?
Cost- applicants are encouraged to represent themselves therefore cheaper. Also rare for an order of cost to be made by tribunal
Quick hearings- most are short and can be dealt with in a day. Exception is employment tribunals
Informality- hearing is more informal than court. Most cases are heard in private
Expertise- Lay members are experts in their field and type of case being heard/ give good knowledge and understanding of issue in dispute
What are the disadvantages of tribunal?
Lack of funding- public funding isn`t available which can create inequalities. However, legal aid is available for cases where human rights are involved
Delay- Lay members sit part time which can create delays
More formal than ADR- tribunal hearings are more formal. Place is unfamiliar and can be confusing for those representing own cases
