ADR Flashcards
what is ADR
alternative dispute resolution the name given to alternative methods of resolving dispute rather than using litigation the four key types of ADR and negotiation mediation conciliation and arbitration 
what is Negotiation
-The most common and more simple form of ADR Where you directly negotiate with the other party

advantages of negotiation
private, quick and cheap
Can be used at any stage meaning its flexible
Is negotiation enforceable by law?
No, as it is before solicitors in court, although it can be used at any stage
Give an example of when you would use negotiation
Injury at work claims or neighbour disputes
What is mediation?
Mediation is a facilitator helping parties reach a compromise
positives of mediation
parties can set the date and time as well as the venue the mediator will talk to both sides and act the neutral go between keeping common ground
keeps out the courts
When will mediation be used?
Divorce settlement child contracts neighbour disputes
what is arbitration
The most formal type of ADR, unlike the others decisions from arbitrator are binding
what act is arbitration governed by?
Arbitration Act 1996. Arbitration usually arises from a clause in a contract known as an arbitration clause (Scott v Avery clause) stating that arbitration will be used to resolve any dispute between the parties. The clause sets down how an arbitrator will be chosen and the procedure to be followed. The Arbitrator is usually someone who has experience in the particular field involved in the dispute
what is the arbitrator
The Arbitrator is an impartial, independent third party (a member of the Chartered Institute of Arbitrators) who makes a legally binding decision / award. The arbitrator will give reasons for their decision in most cases. It is not possible to appeal the decision to a court except where the arbitrator has failed to follow procedure or rules of natural justice. The award can be enforced through the courts if the losing party fails to abide by the decision.
Examples of arbitration
commercial contracts e.g. shipping, construction, transport
how did the two civil courts differ in dealing with cases from ADR?
County Court deals with less complex cases and lower value claims and the High Court with the more complex cases and those involving greater sums of money.
civil procedure rules 1999
Before the introduction of the CPR taking a case to court was complex, costly and slow.
Following a review by Lord Woolf (1996) the process was modernised leading to a series of reforms under the CPR.
One of the key components of the CPR was the 3 track system. Each case was allocated to one of the 3 tracks:
small tracks claim
Claims for less than £10,000
(or Personal Injury = £1,000)
Parties normally represent themselves.
Parties pay their own costs.
Less adversarial – more inquisitorial.
Case heard by a District Judge in County Court in Chambers.
Hearing lasts 1 ½ hours.
Cases heard within 6 months
multi track
Claims above £25,000
Flexible allocation to County or High Court. Determined by value & complexity.
Legal representation in an adversarial hearing. Case management / timetable fixed.
Heard by Circuit or High Court Judge. Hearing = more than 1 day
fast track
Claims between £10,000 - £25,000 (or Personal Injury = £1k - £25k)
Heard by a District or Circuit Judge in a normal Courtroom (County Court);
hearing lasts no more than 1 day.
Trial date set within 30 weeks of allocation to fast Track.
Fixed legal costs.
what percent of personal injury claims are negotiation
90%
Civil court versus ADR
The civil court follows a timetable and is a formal process which can be slow and expensive
The civil court pauses a judge
The use of a courtroom can attract publicity
There are winners and losers and can be stressful and damaging to relationships
Can involve the expertise of the person involved
the party is in control.
The outcomes cannot be paused.
It is less formal and more private
also preserve relationships.
What are the three tracks enable?
To reduce historic time wasting
pre trial procedures
you are allocated questionnaire you can make claim if you think a person owes you money and will not pay you back before making a claim. Contact the person or organisation to try and resolve the issue.
Depending on the amount in complexity, the track will be allocated
The D will file their defence court questionnaires to both parties to estimate the costs length of the hearing
preaction protocols
understand each other’s positions
decisions on how to proceed
settle issues without proceeding
consider a form of ADR support the
efficient management of proceedings
reduce costs
