ADR Flashcards
What is alternative dispute resolution?
Collective term which refers to any means of settling disputes, OUTSIDE the transitional litigation process
What may occur if you fail to engage with ADR?
Penalties may be imposed for this failure, unless they can justify their stance to the court.
What is a directions questionnaire?
During the course of court proceedings, ensures clients are fully aware of the importance and implications of ADR.
Solicitors are required to confirm they have explained to their client:
- the need to try and settle
- the options available
- the possibility of costs sanctions if they refuse to attempt to settle
Who is the independent third party in ADR
Essential feature. Parties are more likely to open in their discussion and less aggression.
Independent third party wll not be treated to act as a neutral, but they should have appropriate industry or commercial knowledge.
What is mediation?
Parties will go to an independent third person/body, who will act as “go-between”, the mediator.
Mediator will be sent written statements from both parties, and discuss the caes with them, on a “without prejudice” basis.
What are the advantages of mediation?
Cheaper, faster
Flexible
Privacy - customers and public are unaware of the circumstances or outcomes.
Preserve business relationship
Commercial reality - realistic and workable terms of settlement
Ability to withdraw at any time
What are the disadvantages of mediation?
If you need a rule of law or injunction, not appropriate.
Matters involving fraud or other commercially disreputable conduct - unsuitable.
Disclosure: no formal procedures, therefore risk the parties may resolve the dispute withotu knowng all the facts.
Privacy: they may WANT publicit if they were not at fault
Ability to withdraw : no one can be forced to engage, may walk away.
What is the enforcement of mediation?
Not automatically binding, no enforcement.
Have to enter contract. If breach, can sue for breach.
What is arbitration?
Once agreed to arbitration, CANNOT take advantage of normal court process.
May be contractually bound to use arbitration, or the parties may agree to t once a dispute has arisen
What is the legal authority for arbitration?
Arbitration act 1996
What is the procedure for arbitration?
Independent arbitrator.
Person, professional or trade body, may be specified in original contract, or parties may choose their own.
Arbitration process will be adopted, but it will be less formal that court proceedings.
Is binding
What are the advantages of arbitration?
Quicker than going to court, and cheaper - although there are cost implications
The procedures are less formal
The decisions are made by an impoartial third party with expertise
Private, thus retaining confidentiality
Solutions reached are more practical than those a court has the power to order.
Decision is BINDING on parties
What are the disadvantages of arbitration?
Dispute may not recieve the depth of investigation it would recieve in court
Certain remedies such as injunctions are not available
Decision is binding, with VERY limited rights of appeal
What is the enforcement of arbitration?
Winning party to arbitration can apply to the High Court under s 6 of the Arbitration Act for permission to enforce the arbitration award, as if it were a court judgement.
What are the civil procedure rules ?
These, the CPR, are the rules that covers civil litigation. It dictates the procedure that must be adopted when pursuing a claim through the courts.
