ADR Flashcards
why ADR
court cases unpredictable,lengthy,costly,complex, ADR is private, greater involvement by parties, control over decision making, quicker and cheaper, follows the woolf reform, ADR is encouraged by the courts
mediation
independent third party meeting with the parties in the dispute to get them to reach a sentence, mediator won’t make decision but will encourage parties to make it themselves, mini trial can be held with mediator, family disputes-family law act 199, popular with business and neighbor disputes, not legally binding
mediation advantages
keeps parties on good terms, parties involved in decision making, quicker than going to court, parties can decide court date convenient for them
mediation disadvantages
only usable if both parties on good terms, no legal aid available, if doesn’t work still need to go to court, settlement agreed could be less than going to court
arbitration
most formal type of ADR, parties agree to have their dispute decided by an independent arbitrator, used by businesses,trade unions and professions, S1 the arbitration act 1996-obtain a fair resolution without necessary delay or expense, (scott v avery)-can be put in contract they will use arbitration and not go to court
arbitration advantages
cheaper and quicker than court, private, parties have full control, arbitrator can be chosen by parties
arbitration disadvantages
no legal aid available, may not work, difficult to appeal, may be delays in getting an arbitrator
arbitration - hearing
time convenient for everyone, paper arbitration-dispute in writing, most formal hearing with lawyers and witnesses
the arbitrator
parties can choose arbitrator, arbitrator may be a lawyer, may choose a single arbitrator or panel, the institute of arbitrators may choose arbitrator
arbitration - the award
decision is made by arbitrator, legally binding, S69 of the arbitration act 1996-can be challenged in the kings bench division
negotiation
least formal, easiest way to dissolve a dispute, take place between solicitors of the parties, a art 36 offer may be made, continues while they await for court dates, not legally binding unless contract is made
negotiation advantages
done by parties themselves, used at any time, private, cheapest method
negotiation disadvantages
may not be successful, no enforce ability, no expertise, imbalance of powers
consiliation
less formal than arbitration, similar to mediation, neutral 3rd party who will actively try to get the parties in the dispute to come to an agreement
the consiliator
meets parties separately and goes between them suggesting solutions, try to get parties to reach a settlement, don’t have authority to see evidence or call witnesses
consiliation - the decision
not legally binding unless agreed by the parties, offers parties a non legally binding decision, AcAs offers this service for an employer and employee, used by companies to assess the strength of a case before court
consiliation advantages
keeps parties on good terms, parties involved in the decision making, quicker than going to court, parties can decide a court date convenient for them
consiliation disadvantages
only be used if both parties are on speaking terms, no legal aid available, if doesn’t work still need to go to court, settlement agreed could be less than going to court
