adr Flashcards
why do we have adr
attempts to involve client in process of resolving disputes
focus on reaching agreement
each case decisded on its merits without reference to other cases
common ground between parties emphasised rather than points of disagreement
confidential process and can rage from informal negotiation to formal arbitration
resolution can be fast and straightforward
what is negotiation
try and resolve it negotiating directly with the other person
advantage of being completely private and is the quickest and cheapest method of solving dispute
may decide to instruct solicitors to negotiate settlement on behalf
evaluation negotiation
+ quickest and easiest form of adr
+ completely confidential
+ most flexible form of adr
- not legally binding
- potentially unfair if parties unequal in power
- if point of law arises it could require lawyer
what is mediation
neutral mediator helps parties reach compromise solution
role of mediator consult with each part and see how much common ground there is- act as messanger between the two parties, will explore the position with each party looking at needs and carrying offers to and fro while keep confidentiality
mediator not tell parties own views act as facilitator to help ensure agreement reached
only suitable if there is some hope parties can cooperate
family law act 1996- encouraged separating couples use mediation instead of court action
can be used in disputes over children property and finance and businesses
cnetre for effective dispute resolution- works on behalf of large companies including large london law firms, solves disputes and saves clients money- typical cost of mediator £1200 a day whereas court litigation £100,000 but does not guarantee matter will be resolved and it could still end up in court but 80% cases resolved by mediation
west kent independent mediation service- provides free service to help parties reoslve conflict, ran by volunteers usually visit each party in home in order obtain relevant info and they arrange meeting between parties in attempt find some common ground, can withdraw at any point
evaluation mediation
+ judgement not based on letter of law- greater flexibility
+ preservation of relationships
+ mutually satisfactory outcomes- no winner or loser
- not legally binding
- dependent on willingness to mediate
- if point of law arises it could require lawyer anyways
what is concillation
neutral third part helps resolve the dispute
play an active role
expected to suggest grounds for compromise and possible basis for settlement between parties
conciliator organise conciliation at any time and place convenient for both parties and will attend with legal advisors
neutral party will listen to all grievances but can suggest how problems may be resolved and let their own opinions be known
evaluation conciliation
+ conciliator can suggest ideas
+ flexibility in time and space
+ cheaper and quicker than tribunal or court
- described as bullying exercise
- potential imbalance of power in employement disputes
- not legally binding
what is arbitration
voluntary submission byt parties to judgement of some person other than judge- they will make decision on the dispute which is called award
agreement will be in writing- precise way it was carried out and is left entirely t parties own agreement
hearing carried out in private at a time and place convenient
each party put forward own arguments and evidence ether orally or writing
witnesses can be called to give evidence or cross examination
governed by arbitration act 1996
s1- object of arbitration is obtan fair resolution of disputes by impartial party without unnecessary delay or expense
arbiotrator independent of parties and usually be someone ith legal and specialist knowledge on subject matter
award is binding on parties- must do as it says and courts have power to enforce it
agreement to arbitrate- scott v avery clause- included in original clause which explains that should a dispute occur in the future both parties agree to try arbitration before resorting to court action
judge will refuse to hear case if not tried arbitration
free but arbitrator will charge fee
no automatic right to appeal but under s68 arbitration act 1996 party may appeal to high court if serious irregularity or on point of law which arises in arbitration
evaluation arbitration
+ parties can choose arbitrator- could have industry specific knowledge
+ flexibility over process
+ legally binding
- professional arbitrator can be expensive
- limited scope to appeal
- arbitrator may not be legally trained
what is ombudsman
someone who investigates complaints about organisations
different ombudsman for different industries
ombudsman association will help find right person for complaint
free independent and unbiased
have had to complain to organisation first before going to ombudsman
investigate complain and make suggestions of what organisation should do but not enforceable
