ADR Flashcards
CIVIL PROCEDURE RULES 1998 - PART 1
Judge’s role is to oversee the case, which involves encouraging ADR if appropriate.
ADVERSE COSTS ORDER
Parties can be penalised for refusing to cooperate in methods of ADR. Shows that ADR has become an expected step in the civil system instead of an alternative.
ARBITRATION
Used in commercial and contract cases.
Disputes made through a neutral third party, who has the authority to bind them to a decision.
Can be a hearing, but most arbitration occurs by submitting evidence instead of making oral submissions - ‘paper arbitration’.
s65 ARBITRATION ACT 1996
An award can only be appealed on the basis of a serious irregularity in proceedings or on a point of law.
SCOTT V AVERY CLAUSE
A contractual agreement to arbitrate in the event of a dispute
EUROPEAN DIRECTIVE ON ALTERNATIVE DISPUTE RESOLUTION
Requires all EU countries to have ADR available for consumer disputes
MEDIATION
Used in family disputes, or anywhere a relationship needs to be maintained.
Parties encouraged to come to their own settlement with the help of a neutral mediator, who facilitate rather than shape the outcome.
Not automatically binding.
e.g. Halsey v Milton Keynes NHS Trust
CIVIL MEDIATION ONLINE DIRECTORY
Funded by the Ministry of Justice. People can search for a mediation provider local to them, with a fixed fee to pay.
CONCILIATION
Used in industrial disputes.
The third party plays a more active role than in mediation.
Advisory, Conciliation and Arbitration service (ACAS)
NEGOTIATION
Used at the onset of a dispute, can involve solicitors.
ARBITRATION ADVANTAGES
- Can have choice over arbitrators via Institute of Arbitrators
- Hearing is at the discretion of the parties, e.g. date, time, venue
- The award is binding
- Arbitrator is an expert in the relevant field
ARBITRATION DISADVANTAGES
- Public funding isn’t available, possibly leaving one party disadvantaged
- Appeals are heavily restricted
- If a legal point arises, there isn’t always a legal professional present
MEDIATION ADVANTAGES
- Private and confidential
- Quick, cost-effective and accessible
- Helps to maintain good relationships
- CEDR reports that 80% of cases are settled at mediation
MEDIATION DISADVANTAGES
- Dispute may end up going to court anyway
- Increasingly seen as compulsory - if people are forced into mediation, there is only half-hearted commitment, decreasing the chances of success
CONCILIATION ADVANTAGES
- Cheaper than litigation
- ACAS adopts a ‘prevention rather than cure’ approach.
- Active role of the conciliator helps with proceedings
CONCILIATION DISADVANTAGES
- Relies on the skills of the conciliator
- Dispute may go to court anyway = greater costs
NEGOTIATION ADVANTAGES
- Private
- A quick resolution that can help maintain relationships
- More informal method
NEGOTIATION DISADVANTAGES
- Involving solicitors can make the process costly
- Offers are often exchanged and not agreed until a court date
- People feel they don’t get what they rightly deserve via this method
