ADR Flashcards
What are the 2 main types of ‘Alternative Dispute Resolution’?
(1) Mediation
(2) Arbitration
What are 2 common features of ADR?
(1) Voluntary
(2) ‘Without Prejudice Save As to Costs’
(1) What can a refusal to engage in ADR result in for the Parties?
(2) What will the court consider in deciding this?
(3) List 4 factors that feed into the test in (2)?
(1) COST consequences
(2) Party UNREASONABLE in refusing
(3)
(i) NATURE / MERITS of case
(ii) Cost ADR DISPROPORTIONATELY HIGH
(iii) Other SETTLEMENT ATTEMPTS made
(iv) ADR has REASONABLE PROSPECT OF SUCCESS
What does ‘Mediation’ involve?
Independent Third Party appointed as a Mediator and ‘Go Between’ the Parties to negotiate an agreement
What are 3 advantages of ‘Mediation’?
(1) FAST / CHEAP
(2) PRESERVES BUSINESS RELATIONSHIPS - less adversarial
(3) CREATIVE OUTCOMES - e.g. apologies (court could not order)
What are 2 disadvantages of ‘Mediation’?
(1) NO DISCLOSURE - decision without parties knowing ‘full facts’
(2) NOT BINDING (unless contract made)
What 2 circumstances can lead to a dispute being solved by ‘Arbitration’?
(1) ARBITRATION CLAUSE in contract
(2) VOLUNTARY AGREEMENT between parties
What are 5 advantages of ‘Arbitration’?
(1) EXPERT ARBITRATOR - can be chosen by Parties
(2) PRIVATE / CONFIDENTIAL
(3) FLEXIBLE - flexible which rules to adopt
(4) BINDING
(5) ENFORCEABLE BY COURT - UK courts enforce ruling
What are 4 disadvantages of ‘Arbitration’?
(1) SLOW / EXPENSIVE
(2) ADVERSERIAL
(3) CANNOT ADD 3rd PARTIES (after proceedings begun)
(4) HARD TO APPEAL
What are 3 advantages of Litigation?
(1) WIDE RANGE POWERS / REMEDIES
(2) ADD 3rd PARTIES
(3) APPEAL EASILY (compared to Arbitration)
(4) MORE PREDICTABLE - use CPR rules
What are 4 disadvantages of ‘Litigation’?
(1) PUBLIC - i.e. judgment on public record
(2) ADVERSERIAL
(3) SLOW / EXPENSIVE
(4) LESS FLEXIBLE - no choice judges / must use CPR rules
