ADR Flashcards
Why might people use ADR instead of court
- Court is expensive and time consuming
- The process can be stressful and traumatic
- Civil court process and hearings open to the public including press
What are the four methods of ADR
Negotiation - parties talk with a lawyer
Mediation - independent person helps parties talk to each other with no opinion
Conciliation - more active mediation
Arbitration - parties agree to have dispute solved by a third party who makes an award
Negotiation
Advantages and disadvantages
Advantages
1. Quickest and cheapest form of ADR
- Court case can be settled before the hearings begin
- Flexible / can be done through email or phonecalls…
- Completely private
Disadvantages
1. Not legally binding
- Can be difficult if power imbalance
- Risk of no decision
- Can be emotionally challenging
Mediation
Advantages and disadvantages
Advantages
- Mediator helps to keep negation run smoothly
- Parties are in complete control
- Preservation of relationships
- Private
Disadvantages
- Not legally binding
- Can be unwillingness to settle
- Parties may not want to cooperate
Conciliation
Advantages and disadvantages
Advantages
- Third helps help bring a resolution
- Parties still in control with support of third party
Disadvantages
- May not be legally binding
- Process could fail and no decision reached
Arbitration
Advantages and disadvantages
Advantages
- Cheaper than court
- Experience and knowledge of arbitrator
- Final and legally binding decision
Disadvantages
- More expensive than other ADR
- More formal and complicated
- Not suitable if important points of law involved
Advantages and disadvantages of ADR
- Less formal
- Reduced use of lawyer
- Quickie and easier than court
- Not legally binding
- Parties cannot be forced to engage
- Lower compensation likely
- Limited rights of appeal
Explain negotiation
Resolving dispute directly through emails, phone calls and meetings
Completely private, quickest and cheapest ADR
Solicitors can aid in negotiating
Explain mediation
A third party helps reach a conclusion
They do not give an opinion
Mediation is used with businesses and family disputes
Charities are available such as Relate
More formal version involves a mini trial
Each side presents to a panel
Explain conciliation
Active third party role in discussions
Suggest grounds for compromise and settlement
Advisory Concilliation and Arbitration Service - industrial disputes
Explain arbitration
Both parties agree to submit their dispute to a neutral third party to make a decision on their behalf
Usually made in writing under arbitration act 1996
Entered a contract with Scott v avery
Courts will refuse to deal with this
