ADR

Question 1

negotiation

Answer 1

• agreement between parties -> no 3rd party (can use solicitors/unqualified rep)
• forms f2f, telephone, email etc
  -process - continue talking till res. made/fails
• success- agreement - > enforcean;e if parties formally agree

Question 2

Mediation

Answer 2

• neutral party - help reach compromise -> facilitator (passive role)
• compulsory small claims cases & often used relationships i.e relate
• control over resolution process -> can withdraw @ any time
  resolution cannot b imposed parties must agree
• alt . approac formalised settlement conference - mini-trial w/ no bnding results
• Centre for Effective DR (CEDR) deals w/ companies (80% resolved)

Question 3

conciliation

Answer 3

• neutral party -> active role -> reach compromise -> pwr to suggest grounds for compromise/settlement
  used in industrial disputes i.e ACAS = employment law
• parties control over resolution -> can withdraw @ anytime
• resolution cannot be imposed -> must be agreed to

Question 4

arbitration - the arbitrator

Answer 4

• may be more than 1 OR Panel
• institute for arbitrators provide trained arbitrators for major disputes
• agreement will either name an arbitrator/method for choosing one
• court may appoint an arbitrator

Question 5

arbitration - the process

Answer 5

• voluntary agreement
• Agreements governed by Arbitration Act 1996 & usually in writing
• agreement can be made before a dispute arises -> ‘Scott v Avery clause’
• may be used for situations such as building contracts, holiday contracts/various business contracts

Question 6

arbitration the hearing

Answer 6

• left to parties to agree procedure/hearing
• can be paper based
• witnesses give evidence on oath
• Date, time & place left to parties

Question 7

arbitration - the award

Answer 7

• binding
• can be enforced via courts
• final
  -only be challenged in courts on grounds of serious irregularity

Question 8

advantages of civil courts

Answer 8

• fair
• expert
• enforceable
• appeal

Question 9

disadvantages of civil courts

Answer 9

• cost
• delays
• uncertainty
• adversial

Question 10

advantages of civil courts - fair

Answer 10

• impartial judge
• everyone treated alike
• judge control proceedings via. allocation questionnaire (right track) & case management (sets strict timetable i.e length of hearing)
• minimise delays

Question 11

advantage of civil courts - expert

Answer 11

• legal qualified judge
• expert on law & experience w/ similar cases
• appropriate complex legal issue cases
• competent legal decision

Question 12

advantages of civil courts - enforcement

Answer 12

• legally binding decision
• guarantee resolution
• cannot walk away
• ADR may provide extra cost if failed + goes to court

Question 13

advantages of civil courts - appeal

Answer 13

• clear structured appeal system for unhappy party
• appeals not limited to PoL
• ensures a fair, just and correct decision is made

Question 14

disadvantages of civil courts - cost

Answer 14

• formality & complexity -> legal representation & advice
• cost exceed amount claimed
• lose = pay other sides costs
• 2013 winning party can only claim costs ‘proportionate’ to value of claim
• discourages ppl & restricts access esp. w/ limited legal aid

Question 15

disadvantages of civil courts - delays

Answer 15

• preliminary stages = lengthy
• usually a wait = a yr
• priority to bigger trials -> great delay small claims
• technical expertise - may require expert witnesses = further delays

Question 16

disadvantages of civil courts - uncertainty

Answer 16

• outcome & cost
• success = no guarantee defendant pay claimant
• enforcement action needed
• additional expense + inconvenience

Question 17

Disadvantages of civil courts - adversial

Answer 17

• winner & loser
• winner takes all & loser pays costs
• no compromise
• personal & business relations destroyed
• court system very formal & intimidating for some.

Question 18

advantages of negotiation

Answer 18

• Only involves parties themselves- no lawyers
• Can happen anytime- while preparing case for court so no wasting time
• Cheapest method
• Outcome is confidential and private
• Relationships maintained

Question 19

disadvantages of negotiation

Answer 19

• may not be success -> need courts & not legally binding
• not suitable for some i.e antagonistic/unwilling to co-op
• repeated unsuccessful -> prolong issue and xtra cost

Question 20

advantages of mediation and conciliation

Answer 20

• parties in control -> withdraw @ any point
• decision commercial sense not strict app. of law
• preserve relationships -> avoid adversarial conflict
• mediation saves approx. £3.8 bn to businesses/yr & mandatory step for small claims

Question 21

disadvantages of Mediation and conciliation

Answer 21

• no guaranteed resolution -> still go court -> additional cost and delay
• relies on skilled 3rd party -> so weaker party not forced to accept compromise
• amount pid -> oft. lower than other forms of ADR + courts

Question 22

advantages of arbitration

Answer 22

• parties choose arbitrator
• no need for as many expert witnesses if arbitrator expert
• time and venue decided by party -> suit commitments -> less formal & quicker
• paper opt. work & life continued whilst waiting for decision
• private
• award is final

Question 23

Disadvantages of arbitration

Answer 23

• unexpected PoL -> not suitable non-lawyers
• fees for professional arbitrators = expensive
• formal hearing opt. -> expensive
• delays for commercial & international -> may be as great as courts
• rights of appeal limited