ADR Flashcards
Why to people use ADR?
It is becoming increasingly popular due to the problems with trying to resolve disputes through the courts.
These problems include:
•Costly, Delay, Publicity, Time Consuming
What is ADR encouraged under?
It is encouraged under the Part 1 Civil Procedure Rules 1, where it is a judges role in active case management to encourage the use of ADR where it is appropriate.
It was one of the recommendations of the Woolf Report to make sure ADR was being used a lot more. Although it is encouraged, the courts do not have the power to force it - Halsey v Milton Keynes NHS Trust (2004)
What are the 4 main forms of ADR?
- Negotiation
- Mediation
- Conciliation
- Arbitration
What is Negotiation?
Used in most cases at the outset of a dispute.
Anyone who has a dispute with another person or party, can always to attempt to resolve it by negotiating directly with them. This has the advantage of the cheapest and quickest way of solving a dispute. If the two parties cannot negotiate with each other themselves, they might instruct solicitors to negotiate for them.
What is ADR?
Alternative.Dispute.Resolution
Any method of resolving a dispute without using the courts.
Wat is Mediation usually used in?
Mediation is usually used in family disputes, or where a relationship needs to be maintained - s.13 Family Law Act 1996
What is Mediation?
Both parties enter mediation voluntarily, where a mediator will explore the positions of each parties, looking at their needs and carrying offer to and fro. Mediator will not give their opinion on the dispute as it is their job to act like a facilitator in hopes to come to an agreement.
What happened in C v C 2003?
This case concerned family proceedings, and contact between two young girls and their parents. The court encouraged mediation based approach to see what could be done with the father and mother to facilitate a future relationship with the girls.
What is Conciliation
- Third Party Actively puts forward ideas for compromise
- Clarifies and Identifies the problems and suggests ground for compromise
- In Industrial Disputes, ACAS can give their opinion on the legal position of a dispute
- Relies heavily on the skill of the Conciliator
What is Arbitration (Intro)
- Oldest form of ADR
- Third Party Decides
- Governed by Arbitration Act 1996
- Section 1 “arbitration is the voluntary submission of the parties of their dispute, to the judgment of some person other than a judge”
- The precise way in which it is carried out is up to the agreement
What is the Agreement (Arb)
- Parties can decide any time if they would like to use Arbitration
- Commercial Contracts use Smith v Avery Clause in contract
- If a dispute ever were to arise, it’d be settled in arbitration
The Arbitrator
- Section 15 of the Arbitration Act 1996 states there is no limit to how many arbitrators a party can use
- If they cannot decide on how many to use, the Act states that only one should be appointed.
- How they are appointed is up to the party
The Hearing (Arb)
- The hearing procedure is left up to the parties to decide, so there are many ways
- They may write all necessary information on paper and put all their documents forward to the arbitrator to decide on
- Alternatively they may send documents to the arbitrator and call for a hearing where oral submissions, and if necessary oral evidence by witness will be submitted.
- Date time and place is all up to the two parties to decide with the arbitrator
The Award (Arb)
The decision of the Arbitrator is called an award, and can be enforced through the court if necessary.
The decision is usually final, though it can be challenges in the courts on a point of law (section 68 Arbitration Act 1996)
