ADR Flashcards
What is the purpose of ADR?
Attempting to solve a dispute peacefully before resulting in court
What are the 3 non-legally binding types of ADR?
Negotiation
Mediation
Conciliation
What are the 2 legally binding types of ADR?
Arbitration
Tribunal
What are the 5 types of ADR in order of seriousness?
Negotiation
Mediation
Conciliation
Arbitration
Tribunal
What is Negotiation?
2 people or groups reach a solution without the help of anyone else
(NOT lb)
What is Mediation?
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)
What are the attributes of a mediator?
Go-between/ peacekeeper.
Sits in discussions w/o offering advice.
Often a trained professional but doesn’t have to be.
What is conciliation?
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)
What are the attributes of a conciliator?
Provides suggestions and advice.
Does not make any decision.
Often a trained professional but doesn’t have to be.
Most work for charities.
How is Negotiation carried out?
Parties talk to achieve a compromise
- Either in person or through letters.
What does a client have to do before involving a solicitor?
Must have already attempted Negotiation.
Who and why is Negotiation encouraged?
By Law Society and the courts.
- saves time and money for all involved.
What are some examples of Negotiation?
2 friends discuss what they’ll do together at the weekend.
They reach a compromise so they’re both happy with the plans.
What is a collective Negotiation example?
CBA-v-MoJ
How is CEDR (Centre for Effective Dispute Resolution) involved in Mediation?
Professional organisation used by businesses to solve disputes without going to court.
Give some advantages to CEDR in Mediation?
80% success rate.
Cheaper than court.
- Approx. £1k for a mediator
- Whereas court Approx. £100k+ for a complicated court case
What is a mini-trial in Mediation?
Mediator acts as a judge (acts as a court would).
- Calls in witnesses.
- Demonstrates litigation.
What is RELATE in Mediation?
Family Mediation - marriage counselling.
What are other examples of Mediation?
Community/ neighbour.
Primary school.
- e.g. Southwark Mediation Scheme
What is ACAS (Advisory, Conciliation and Arbitration Service) in Conciliation?
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.
Give 2 examples of Collective Conciliation.
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.
Explain Pre-Employment Tribunals as an example of Conciliation?
Helps prepare you for Employment Tribunal trial.
- Gives advice and representation before tribunal date.
- Higher chance of fairer outcome.
What is the most common type of Arbitration?
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.
What is the 2nd type of Arbitration?
Paper Arbitration
- Parties submit their documents and the arbitrator decides the case based on them.
What act governs Arbitration?
Arbitration Act (1996)
Act of Parliament, making it more formal.
What is Arbitration?
Neutral 3rd party makes a discussion which the parties agree to follow.
(IS lb)
What must the parties do in agreeing to do the decision of an Arbitrator?
Sign a document.
Give advantages to Arbitration?
Parties remain in control (as usually forced into it).
- choose date, time, place, procedure and arbitrator(s).
Parties share cost upfront.
Describe the decision in Arbitration?
If parties choose Arbitration, it is legally binding and can be enforced through the courts.
What circumstances can an Arbitrator’s decision be appealed/ set aside by the courts?
On a point of law.
OR
Serious irregularity in proceedings, where a party was unfairly treated.
- e.g. Arbitrator knew a party.
What is an Arbitrator’s decision called?
An ‘award’.
What is the Chartered Institute of Arbitrators (CIArb)?
Where people register and gain qualifications for arbitrating.
What may an Arbitrator be trained in?
General Arbitration
OR
Specific subject area
- e.g. construction
How is an Arbitrator’s qualifications an advantage over Judge’s?
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.
What are some attributes of an Arbitrator?
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.
How many Arbitrators can the party choose?
One single
OR
Panel of 3
What are the 3 Types of Arbitration?
Small Claims Track (in County Court)
Consumer
Commercial
Outline Small Claims track in terms of Arbitration?
Less formal than normal litigation.
Lawyers not finally used.
Inquisitional
What are some key features of Consumer Arbitration?
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
What is Commercial Arbitration? And what is the clause associated with it?
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)
What is a Tribunal?
Taking part in a mini-court hearing on a specialist matter.
What is an Employment Tribunal?
Responsible for hearing claims from people who think someone, such as an employer or potential employer, has treated them unlawfully.
Give examples of Employment Tribunal?
Unfair dismissal.
Discriminations.
Unfair deductions from pay.
Who hears an Employment Tribunal?
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).
Discuss the formality of Employment Tribunals?
(Mainly legal people present)
Heard by Employment Judge, sometimes with 2 lay members.
Lawyers discouraged.
Legal aid not usually available.
Procedures usually informal.
What act governs Tribunals?
Tribunals, Courts and Enforcement Act (2007)
What is it called to appeal a Tribunal?
‘Eat’
Under what circumstances can people appeal Tribunals?
Within 42 days.
On a point of law.
Who sits for Tribunal appeals?
Judge
Who are Tribunal appeals appealed to?
Employment Appeal Tribunal.
What ADR type is appealed against the most?
Tribunals
- As those there are forced to go.
