ADR

Question 1

4 types of ADR

Answer 1

• Negotiation
• Mediation
• Conciliation
• Arbitration

Question 2

What does ADR stand for?

Answer 2

Alternative Dispute Resolution

Question 3

Negotiation definition

Answer 3

Where two people can try and resolve their dispute by negotiating directly between themselves

Question 4

Example of Negotiation

Answer 4

Between two neighbours when a dispute arises

Question 5

What happens if parties cannot resolve their dispute between themselves (negotiation)

Answer 5

• They can employ a solicitor
• Once lawyers are involved, there will be a cost element
• The longer the negotiations last, the higher the costs are.

Question 6

Mediation definition

Answer 6

-Where a neutral third party helps parties reach a compromise by acting as a facilitator
- The mediator does not offer an opinion unless asked
- Both parties have control over the process and can withdraw at any given time

Question 7

What is the solution reached described as in mediation?

Answer 7

Not binding and a dispute cannot be imposed on them

Question 8

Example of Mediation

Answer 8

• Family Mediators Association
• RELATE
• They deal with divorce/child custody

Question 9

Mediation services definition

Answer 9

• Companies which solve disputes

Question 10

Centre for Dispute Resolutions

(mediation services)

Answer 10

• Many large companies as members as well as all of the large London Law firms
• 2016, reported it had solved 10,000 claims over the last 12 months, saving 2.8 billion in time, productivity, and legal fees

Question 11

Example of a Mediation service that deals with smaller disputes

Answer 11

• West Sussex Mediation Service
• Offers mediation for disputes between neighbours, work place disputes, and family disputes

Question 12

Conciliation

Answer 12

Operates in a similar way to mediation, but the conciliator takes more of an active role and has the power to suggest grounds for compromise or a settlement

Question 13

Example of Conciliation

Answer 13

• ACAS
• Resolve employment disputes

Question 14

Arbitration definition

Answer 14

Parties agree voluntarily to submit their claims to a private arbitrator, or a panel of arbitrators, who decide on a settlement like a judge would

Question 15

Examples of Arbitration

Answer 15

• Package holiday contracts
• Construction contracts
• Court of Arbitration for Sport

Question 16

How is Arbitration used in commercial disputes?

Answer 16

• When there is a contract with a clause in it stating that if a dispute occurs, the parties will use arbitration rather than taking the case to court.
• Known as a Scott v Avery clause

Question 17

Parties - arbitration

Answer 17

• Can have 1-3 arbitrators
• Contract will either name a specific arbitrator or provide a method for selecting one
• A court can appoint one if the parties are unable to

Question 18

What happens when there is agreement to arbitrate?

Answer 18

• The Arbitration Act 1996 applies which states that courts should refuse to deal with such cases so that arbitration can take place instead
• Trained arbitrators for major disputes (someone with expertise in the particular field)

Question 19

Type of arbitration hearing is left to the parties. What are these?

Answer 19

• Paper statements without the parties present
• Oral representations where witnesses can be called upon to give evidence and this operates like a formal hearing

Question 20

What must be agreed with between the parties and the arbitrator, why?

Answer 20

• Date, time, and place
• Makes the hearing more flexible as it can take place at a time when it is most convenient to the parties

Question 21

Decision made by the arbitrator

Answer 21

• Known as an award
• Legally binding upon the parties
• Could be enforced in court if necessary

Question 22

Arbitrators decision challenged

Answer 22

• Under the Arbitration Act 1996 for serious irregularity
• E.g, if the proceedings were conducted incorrectly, or on a point of law.

Question 23

Give 4 advantages of mediation/conciliation

(AO3)

Answer 23

• Much quicker and cheaper than going through the lengthy process of litigation
• Much simpler than going to court and can be conducted less formally
• Tries to preserve good relationships
• A high number of cases are resolved through mediation. The Centre for Dispute Resolution claims that over 80% of cases are settled.

Question 24

Give 4 disadvantages of mediation/conciliation

(AO3)

Answer 24

• Not guaranteed to be successful, and if it doesn’t work the parties will still have to go to court (wastes time and money)
• Not legally binding, so in some disputes the parties might agree a settlement and not stick to it (they’ll have to go to court)
• Many citizens are unaware of them, so are reluctant to use it as they have little confidence in its effectiveness
• Successful mediation requires a skilled mediator with ‘natural talent, honed skills, and accumulated experience’. If these qualities aren’t present, mediation can become a bullying exercise in which the weaker party may be forced into a settlement.

Question 25

Give 4 advantages of arbitration

(AO3)

Answer 25

• Arbitrator can be an expert in that particular field, expert witnesses won’t be required (avoids expense and delay)
• Hearing time, place, and location can be chosen to suit the parties, much more flexible than court and is more convenient for businesses as it can suit their working commitments
• Hearing is private, unlike court, so it prevents bad publicity and bad feeling between the parties is likely to be avoided (parties can continue their business relationship in future)
• Much cheaper and quicker than court, and the award is final and legally binding so it brings closure for the parties and avoids further dispute.

Question 26

Give 4 disadvantages of arbitration

(AO3)

Answer 26

• Legal funding unavailable to help with costs, so if the dispute is between a company and an individual, the individual would have to pay their own arbitration costs whereas they would have been entitled to legal funding if they had taken the matter to court
• Could mean that an individual taking action against a business is not on equal footing as they may be unable to afford legal representation. This is not only intimidating, but significantly reduces their chances of winning if the business arrives for the hearing with a team of lawyers
• A point of law may need to be resolved that the arbitrator cannot, this could delay the process of jeopardise it completely
• If a professional arbitrator is used the fees may still be expensive, and the overall costs may still be as high as court, especially if the parties opt for a formal hearing with witnesses and legal representation.

Question 27

Give 3 advantages of negotiation

(AO3)

Answer 27

• Cheaper and quicker than court so no time or money is wasted
• Allows the parties to tailor the decision to their own needs as it is within their control
• They can decide on their own date, place, and time which will be convenient to them

Question 28

Give 3 disadvantages of negotiation

(AO3)

Answer 28

• Not guaranteed to be successful
• If they don’t solve it themselves, they can get a solicitor. The longer the case lasts, the higher the cost will be
• Not legally binding