ADR

Question 1

What are the advantages for negotiation

Answer 1

-simple
-informal
- private and confidential
-less intimidating

Question 2

what are the disadvantages for negotiation

Answer 2

• can be costly if lawyers are involved
• Lawyers wait until the day of court to settle to extend costs
• not binding

Question 3

what are the advantages for arbitration

Answer 3

• Parties get to decide on a arbitrator from the institute of arbitrators.
• private and confidential process
• Awards are binding due to a Scott vs Avery clause to agree pre- contractually.
• informal

Question 4

what are the disadvantages of Arbitration

Answer 4

• Appeals are rarely heard, and can only be heard if the decision is highly irregular under s65 of the Arbitration Act 1996.
• No public funding may give one party a advantage from the offset.
• High costs for arbitrators

Question 5

what are the advantages for conciliation

Answer 5

• ACAS ensures that the third party conciliator has a more active role in settling.
• Employment Tribunals Act 1996 made it a mandatory step for ‘Early conciliation in employment disputes
• Very private and confidential process
• 70% success rate in settling before litigation.
• cost effective
• ACAS enhances effective ness by ensuring a structured, neutral and accessible process.

Question 6

Disadvantages of conciliation

Answer 6

• Success of case relies solely on the skills of the arbitrator making it a brittle option.
• non binding between parties
• may go to court anyway

Question 7

advantages of mediation

Answer 7

• Third party helps parties reach a solution by maintaining relationships.
• Avoids adversarial nature of court.
• CEDR rules that 80% of cases are resolved before litigation
• Dunnett vs Rail track 2002 - mediation is so successful is it expected by courts and it made mandatory.

Question 8

Disadvantages

Answer 8

• non binding
• Court may be necessary anyway resulting in increased delay and cost in MIAMS.
• Depends of parties willingness to mediate.
• Halsey vs Milton Keynes NHS Trust 2004- Demonstrated how mandatory mediation may infringe the parties Article 6 “right to a fair trial” and mediation requirements being made mandatory can be harmful when not in light with the context of the case.