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Law OCR Paper 1 Section A > ADR > Flashcards

ADR Flashcards

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1
Q

What is the purpose of ADR?

A

Attempting to solve a dispute peacefully before resulting in court

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2
Q

What are the 3 non-legally binding types of ADR?

A

Negotiation
Mediation
Conciliation

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3
Q

What are the 2 legally binding types of ADR?

A

Arbitration
Tribunal

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4
Q

What are the 5 types of ADR in order of seriousness?

A

Negotiation
Mediation
Conciliation

Arbitration
Tribunal

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5
Q

What is Negotiation?

A

2 people or groups reach a solution without the help of anyone else

(NOT lb)

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6
Q

What is Mediation?

A

2 people reach a decision with the help of a neutral 3rd party, who does NOT offer any suggestions or advice.

The 3rd party is a go-between, peacekeeper or mediator.

Up to the parties to reach their own agreement.
(NOT lb)

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7
Q

What are the attributes of a mediator?

A

Go-between/ peacekeeper.

Sits in discussions w/o offering advice.

Often a trained professional but doesn’t have to be.

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8
Q

What is conciliation?

A

2 people reach an agreement with the help of a neutral 3rd party, who DOES provide suggestions and advice but does NOT make any decision.

Parties reach own agreement.
(NOT lb)

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9
Q

What are the attributes of a conciliator?

A

Provides suggestions and advice.

Does not make any decision.

Often a trained professional but doesn’t have to be.

Most work for charities.

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10
Q

How is Negotiation carried out?

A

Parties talk to achieve a compromise
- Either in person or through letters.

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11
Q

What does a client have to do before involving a solicitor?

A

Must have already attempted Negotiation.

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12
Q

Who and why is Negotiation encouraged?

A

By Law Society and the courts.
- saves time and money for all involved.

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13
Q

What are some examples of Negotiation?

A

2 friends discuss what they’ll do together at the weekend.
They reach a compromise so they’re both happy with the plans.

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14
Q

What is a collective Negotiation example?

A

CBA-v-MoJ

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15
Q

How is CEDR (Centre for Effective Dispute Resolution) involved in Mediation?

A

Professional organisation used by businesses to solve disputes without going to court.

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16
Q

Give some advantages to CEDR in Mediation?

A

80% success rate.

Cheaper than court.
- Approx. £1k for a mediator
- Whereas court Approx. £100k+ for a complicated court case

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17
Q

What is a mini-trial in Mediation?

A

Mediator acts as a judge (acts as a court would).
- Calls in witnesses.
- Demonstrates litigation.

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18
Q

What is RELATE in Mediation?

A

Family Mediation - marriage counselling.

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19
Q

What are other examples of Mediation?

A

Community/ neighbour.

Primary school.
- e.g. Southwark Mediation Scheme

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20
Q

What is ACAS (Advisory, Conciliation and Arbitration Service) in Conciliation?

A

Aims to improve organisations and working life through better employment relations.
- Offers free and impartial advice and consolidation.
- Mediates, Conciliates, gives talks and helps with tribunals.

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21
Q

Give 2 examples of Collective Conciliation.

A

London 2012.
- RMT-v-Olympic Union
- RMT said wouldn’t run trains as too much but ACAS got £10k pay rise.

Stopped Jr. Doctors the night before going strike in 2015 against Jeremy Hunt.

22
Q

Explain Pre-Employment Tribunals as an example of Conciliation?

A

Helps prepare you for Employment Tribunal trial.
- Gives advice and representation before tribunal date.
- Higher chance of fairer outcome.

23
Q

What is the most common type of Arbitration?

A

Formal Hearings
- Arbitrator hears oral submissions, similar to court and may use the same court procedures as a available in legal proceedings to call witnesses.

24
Q

What is the 2nd type of Arbitration?

A

Paper Arbitration
- Parties submit their documents and the arbitrator decides the case based on them.

25
Q

What act governs Arbitration?

A

Arbitration Act (1996)

Act of Parliament, making it more formal.

26
Q

What is Arbitration?

A

Neutral 3rd party makes a discussion which the parties agree to follow.
(IS lb)

27
Q

What must the parties do in agreeing to do the decision of an Arbitrator?

A

Sign a document.

28
Q

Give advantages to Arbitration?

A

Parties remain in control (as usually forced into it).
- choose date, time, place, procedure and arbitrator(s).

Parties share cost upfront.

29
Q

Describe the decision in Arbitration?

A

If parties choose Arbitration, it is legally binding and can be enforced through the courts.

30
Q

What circumstances can an Arbitrator’s decision be appealed/ set aside by the courts?

A

On a point of law.
OR
Serious irregularity in proceedings, where a party was unfairly treated.
- e.g. Arbitrator knew a party.

31
Q

What is an Arbitrator’s decision called?

A

An ‘award’.

32
Q

What is the Chartered Institute of Arbitrators (CIArb)?

A

Where people register and gain qualifications for arbitrating.

33
Q

What may an Arbitrator be trained in?

A

General Arbitration
OR
Specific subject area
- e.g. construction

34
Q

How is an Arbitrator’s qualifications an advantage over Judge’s?

A

Judges are only trained in law so don’t have the specific understanding in a certain type of case e.g. construction.

An Arbitrator is trained in specific subjects so will understand them better and reach a fairer decision.

35
Q

What are some attributes of an Arbitrator?

A

Usually does arbitrating on the side of another job.

Professionally trained in general or specific arbitration.

Makes a decision that the parties have to follow.

36
Q

How many Arbitrators can the party choose?

A

One single
OR
Panel of 3

37
Q

What are the 3 Types of Arbitration?

A

Small Claims Track (in County Court)

Consumer

Commercial

38
Q

Outline Small Claims track in terms of Arbitration?

A

Less formal than normal litigation.
Lawyers not finally used.
Inquisitional

39
Q

What are some key features of Consumer Arbitration?

A

Only relevant in some trades/ professions
- e.g. dry cleaners, holiday companies

Option to use a private arbitration scheme instead of court
- e.g. ABTA scheme

40
Q

What is Commercial Arbitration? And what is the clause associated with it?

A

Most business contracts have a paragraph stating that they must go to private arbitration.

Arbitrator is usually a professional from the Institute of Arbitrators.

Clause:
Scott-v-Avery Clause
- (Arbitration Clause 1996)

41
Q

What is a Tribunal?

A

Taking part in a mini-court hearing on a specialist matter.

42
Q

What is an Employment Tribunal?

A

Responsible for hearing claims from people who think someone, such as an employer or potential employer, has treated them unlawfully.

43
Q

Give examples of Employment Tribunal?

A

Unfair dismissal.
Discriminations.
Unfair deductions from pay.

44
Q

Who hears an Employment Tribunal?

A

Employment Judge
- can sit alone or with 2 lay members

Lay members are drawn from a panel after consultation with employer and employee organisations
- Confederation of British Industry (CBI) and Trades Union Congress (TUC).

45
Q

Discuss the formality of Employment Tribunals?
(Mainly legal people present)

A

Heard by Employment Judge, sometimes with 2 lay members.
Lawyers discouraged.
Legal aid not usually available.
Procedures usually informal.

46
Q

What act governs Tribunals?

A

Tribunals, Courts and Enforcement Act (2007)

47
Q

What is it called to appeal a Tribunal?

A

‘Eat’

48
Q

Under what circumstances can people appeal Tribunals?

A

Within 42 days.

On a point of law.

49
Q

Who sits for Tribunal appeals?

A

Judge

50
Q

Who are Tribunal appeals appealed to?

A

Employment Appeal Tribunal.

51
Q

What ADR type is appealed against the most?

A

Tribunals
- As those there are forced to go.

Law OCR Paper 1 Section A (4 decks)

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