ADR Flashcards
What is ADR
Resolving dispute before/ so you don’t have to go to court
What does ADR stand for
Alternative dispute resolutions
What are the 4 types of ADR
Mediation, arbitration, negotiation and conciliation
What does mediation include
An independent 3rd party meeting with the parties to try and get them to reach a settlement
What will the mediator not do
Make decisions as they will push them to make the decisions themselves
What form may mediation come in
A mini trial
Where is mediation common and what does this mean
Family disputed which means mediators are often trained in counselling skills
What act was introduced that encouraged divorcing couples to use mediation
The family law act 1996
Who is mediation popular with and why
Businesses so then they can continue dealings in the future and local councils as they can help with neighbour disputes
Mediation is not what
Not legally binding
What is arbitration
Parties agree to have their dispute decided by an independent arbitrator who will then decide the outcome of their case
Who is arbitration popular with
Businesses, trade unions and professions to settle disputes
What clause do businesses place in contracts that state if there is a dispute, it will be resolved by arbitration
Scott v Avery clause
What can the hearing be
As formal or informal as the parties like
How is it decided when an arbitration hearing will take place
A time and date is set out that is convenient for both parties
What do most formal hearings involve
Lawyers and witnesses can attend
What is paper arbitration
The parties submit their dispute in writing to the arbitrator who will then decide who to
grant the award.
What can there be before the final award is made
The parties can meet with the arbitrator
Who are arbitrators
Lawyers or personnel with expertise in the specific area
Who decides the arbitrators
The parties are free to choose who they would like
How many arbitrators can they choose
Just one or a panel
Who provides the parties with arbitrators if the parties cannot agree
Institute of arbitrators
What is the decision made by the arbitrator
Legally binding and the awards can be enforced by the courts
When is an arbitrators decision enforced
Immediately unless they have referred a point of law to the high court
What act states the award can be challenged by the KBD on a point of law or if there has been a serious irregularity
S69 of the arbitration act 1996
What is required to appeal to the KBD
Leave to appeal
What is negotiation
The first action that is typically taken before anything else does
When may negotiations take place and between who
Between both parties solicitors on the run up to a court date
What offer can be given before a trial that encourages settlements
Part 36 offer
What happens if the other side fails to beat the part 36 offer at trial
There will be cost consequences
What is negotiation not
Not legally binding unless a formal contract is made and signed
What is conciliation
A form of dispute where an independent 3rd party helps to solve a dispute
What does the conciliator do
Meet with parties separately and go between the 2 suggesting solutions to the problem hoping to get a compromise to solve the dispute or reach a settlement
What do conciliators not have the authority to do
See evidence and call witnesses
What is the decision of conciliation not
Not legally binding unless agreed by the parties that it should be legally enforceable
When can the parties in conciliation go to court
If the compromise is not agreed on by both parties
What can conciliators also do regarding their opinion
They can give non binding advice
What organisation uses conciliation for disputes between employees and employers
ACAS (advisory conciliatory and arbitration services)
Why might conciliation be used by companies
So they can assess how strong their case is before they take it to court
Advantages of ADR
Cheaper, more control, expertise, more privacy, more flexible and faster
Disadvantages of ADR
The parties may not be willing, inequality, costs can end high, no guarantee of resolution, not always legally binding and smaller settlements than a court
