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OCR A-LEVEL LAW PAPER 1 SECTION A > ADR > Flashcards

ADR Flashcards

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1
Q

negotiation

A
  • 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
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2
Q

Mediation

A
  • 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)
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3
Q

conciliation

A
  • 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
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4
Q

arbitration - the arbitrator

A
  • 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
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5
Q

arbitration - the process

A
  • 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
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6
Q

arbitration the hearing

A
  • left to parties to agree procedure/hearing
  • can be paper based
  • witnesses give evidence on oath
  • Date, time & place left to parties
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7
Q

arbitration - the award

A
  • binding
  • can be enforced via courts
  • final
    -only be challenged in courts on grounds of serious irregularity
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8
Q

advantages of civil courts

A
  • fair
  • expert
  • enforceable
  • appeal
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9
Q

disadvantages of civil courts

A
  • cost
  • delays
  • uncertainty
  • adversial
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10
Q

advantages of civil courts - fair

A
  • 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
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11
Q

advantage of civil courts - expert

A
  • legal qualified judge
  • expert on law & experience w/ similar cases
  • appropriate complex legal issue cases
  • competent legal decision
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12
Q

advantages of civil courts - enforcement

A
  • legally binding decision
  • guarantee resolution
  • cannot walk away
  • ADR may provide extra cost if failed + goes to court
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13
Q

advantages of civil courts - appeal

A
  • clear structured appeal system for unhappy party
  • appeals not limited to PoL
  • ensures a fair, just and correct decision is made
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14
Q

disadvantages of civil courts - cost

A
  • 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
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15
Q

disadvantages of civil courts - delays

A
  • preliminary stages = lengthy
  • usually a wait = a yr
  • priority to bigger trials -> great delay small claims
  • technical expertise - may require expert witnesses = further delays
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16
Q

disadvantages of civil courts - uncertainty

A
  • outcome & cost
  • success = no guarantee defendant pay claimant
  • enforcement action needed
  • additional expense + inconvenience
17
Q

Disadvantages of civil courts - adversial

A
  • winner & loser
  • winner takes all & loser pays costs
  • no compromise
  • personal & business relations destroyed
  • court system very formal & intimidating for some.
18
Q

advantages of negotiation

A
  • 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
19
Q

disadvantages of negotiation

A
  • 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
20
Q

advantages of mediation and conciliation

A
  • 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
21
Q

disadvantages of Mediation and conciliation

A
  • 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
22
Q

advantages of arbitration

A
  • 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
23
Q

Disadvantages of arbitration

A
  • 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

OCR A-LEVEL LAW PAPER 1 SECTION A (9 decks)

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