ADR Flashcards
Advantages of ADR
-speed
-expertise
-privacy
-good terms
-cost to parties
-cost to state
-saving court time
Disadvantages of ADR
-unequal bargaining power
-lack of legal expertise
-no system of precedent
-enforceability
-court action may still be required
Main problems of civil courts
-expensive
-bad publicity
-often delays
-complexity
-trial involved winner and loser
-aggressive atmosphere in court
-may find procedures intimidating and stressful
-parties not in control
Advantages of taking a case to court
-a final decision will be made
-could be quicker than using other methods
-professionals will be making the decision
-routes of appeal available
-remedies (settlements) gained in court are usually higher
What did the 1999 Civil Procedure Act allow?
Judges to stop court proceedings so that ADR can be tried
what are the 4 types?
negotiation
mediation
conciliation
arbitration
summary definition of negotiation
the disputing parties try to come to a decision themselves
rarely they may choose to negotiate through a solicitor
advantages of negotiation
-cheaper and quicker then court
-parties in control
-can be used at any point
-can include decisions about the future
-avoids negative business relations
-no publicity
disadvantages of negotiation
-no guarantee of resolution
-may still have to go to court
-only suitable if parties co-operate
-can be lengthy if it drags on
-if a solicitor is needed i will add to the cost
summary definition of mediation
the disputing parties are helped to come to a decision themselves with the use of a neutral third party
(mediator acts as a facilitator and cannot suggest solutions)
what is the role of the mediator?
to find common ground between the parties
what cases is mediation often used for?
divorce cases
rule for family law cases
mediation must have been tried before a case can go to court (MIAM)
advantages of mediation
-parties remain in control
-faster than court
-cheaper then court (CEDR)
-no publicity
-keeps good business relations
what is CEDR
and statistics
the Centre for Effective Dispute Resolution
in 2016,they had around 10,000 cases and solved 80% of these,saved companies 2.8 bil pounds
disadvantages of mediation
-may not be resolved
-not legally binding
-lower settlements than in court
-co-operation needed
-requires a skilled mediator
-doesn’t suit cases where there is an inequality of bargaining power
summary definition of conciliation
the disputing parties are helped to come to a decision themselves with the use of a neutral third party who plays an active role in suggesting solutions
what does ACAS stand for?
Advisory, conciliation and arbitration service
What is ACAS?
used by many employers and trade unions to settle disputes.
provides free advice for employees/employers.
offers conciliation to both sides in unfair dismissal claims before claim taken to employment tribunal.
around 60% of unfair dismissal claims settled.
advantages of conciliation
-cheaper and quicker than court
-parties in control
-no publicity
-avoids negative relations
disadvantages of conciliation
-no guarantee of resolution
-solicitor is costly if needed
-co-operation needed
-not legally binding
summary definition of arbitration
the disputing parties let a third party decide the outcome
the arbitrator is impartial but hears all the arguments and makes a decision based on the evidence.
the arbitrators decision is legally binding
Arbitration Act 1996
the relevant law on arbitration
under s68 and s69, appeals may be on limited grounds to the high court
Scott v Avery clause
the agreement to go to arbitration can be made by the parties at any time
it can be written into a business contract by a Scott v Avery clause
