ADR Flashcards
What is ADR?
Alternative dispute resolution means to resolve a dispute without having to go to court
What are the four main types of ADR
-negotiation
-meditation
-conciliation
-arbitration
Negotiation
-solving the dispute with the parties directly involved
-most used method of ADR as it is easy private and minimum cost
Mediation
-involves a third party acting as a referee
-popular in family cases (family law act 1996)
-parties are encouraged to come to a decision on their own
-dunnett v Railtrack an adverse costs order was given to parties who refused to mediate
Mediation advantages
-1. Good alternative to lengthy and expensive court proceedings and will hopefully reduce the number of divorces dealt with by the courts.
-2. Mediator is independent and the mediator will be agreed by the parties.
-3. Provides people with a quicker, cheaper and more harmonious way of dealing with disputes. With the
scrapping of legal aid in such cases, it is the government’s alternative to save money.
Mediation disadvantages
-1. It is not compulsory to commit to the process after the initial assessment so people could end up spending more
money by taking it to court anyway.
-2. Successful mediation takes approximately three to five days to resolve whereas court could be over in one day. It can take place as often as the parties like and are willing, so it can therefore be long drawn out.
-3. Although a lot of family mediators tend to be lawyers, this is not a requirement, so there will be no legal expertise if a legal point arises.
What is conciliation?
Conciliation is a voluntary, flexible, confidential, and interest based process. The parties seek to reach an amicable dispute settlement with the assistance of the conciliator, who acts as a neutral
third party.
Conciliation
• Involves third party taking a more ACTIVE role in suggesting ways
to come to a settlement.
• Common in industrial disputes – ACAS is the biggest conciliatory body.
• “Prevention rather than cure” approach.
• Also used in access to services for the disabled.
• Conciliation can also be used to prevent industrial strikes
Arbitration
Governed by the Arbitration Act 1996.
• Common in commercial contracts and sporting disputes.
• Award is binding on the parties.
• Flexible procedure – number of witnesses, where, when, time etc.
• Can choose specialist in the field OR legal professional as arbitrator.
• Must be carried out in a judicial manner in line with natural justice.
• Scott v Avery clause – agreement to arbitrate before contract
Arbitration act 1996
• s1 Arbitration Act 1996 states,
(a) The object of arbitration is to obtain the fair resolution of disputes by an impartial tribunal without
unnecessary delay or expense;
(b) The parties should be free to agree how their disputes are resolved, subject only to such safeguards as
are necessary in the public interest.
• An agreement to arbitrate will usually be in writing; the Arbitration Act 1996 applies only to written
arbitration agreements. The precise way in which the arbitration is carried out is left almost entirely to
the parties’ agreement.
• s15 Arbitration Act 1996 states that the parties are free to agree on the number of arbitrators, so that a
panel of two or three may be used or there may be a sole arbitrator. If the parties cannot agree on a
number then the Act provides that only one arbitrator should be appointed.
• The Act also says that the parties are free to agree on the procedure for appointing an arbitrator. Most
agreements will either name an arbitrator or provide a method of choosing one. It is often provided
that the president of the appropriate trade union will appoint the arbitrator.
• The Institute of Arbitrators provides trained arbitrators for major disputes. In many cases, the arbitrator
will be someone who has expertise in the particular field involved in the dispute, but if the dispute
involves a point of law the parties may decide to appoint a lawyer.
• If there is no agreement on whom or how to appoint, then, as a last resort the court can be asked to
appoint an appropriate arbitrator.
Arbitration advantages
The parties can choose their own arbitrator, and can therefore decide whether the matter is best dealt with by a technical expert , a lawyer, or a professional arbitrator.
Questions of quality can be decided by an expert in the particular field, saving the expense of calling expert
witnesses and the time that would be used in explaining all the technicalities to a judge.
The hearing time and place can be arranged to suit the parties.
Arbitration disadvantages
An unexpected legal point may arise in the case which is not suitable for decision by a non-lawyer arbitrator.
If a professional arbitrator is used, his fees may be expensive.
It will also be expensive if the parties opt for a formal hearing, with witnesses giving evidence and lawyers representing both sides.
