ADR Flashcards
Why isn’t court action always the most appropriate solution? (5)
- Complexity of legal procedures
- Delay in resolutions
- Cost of Ct action
- Intimidating atmosphere of Ct
- May lead to deterioration of Rship between parties
What Act encourages the use of ADR?
Civil Procedure Rules 1998
What does Part 1 of the Civil Procedure Rules 1998 say about the use of ADR?
Part of judges role in active case management is to encourage the use of ADR where appropriate
CPR allows judges to stop + refer parties to ADR
(especially family + employment)
What has happened to the use of ADR in the past 50 years?
Has grown
Increasingly seen as compulsory rather than alternative
What has happened before when parties have refused to cooperate with ADR?
= cases where parties have been ‘punished’ with adverse cost orders
BUT in Halsey v Milton Keynes General NHS Trust 2004 the CA said: can’t force parties into ADR; goes against the ECHR Art 6 - right to a fair trial
What was said by the CA in the case of Halsey v Milton Keynes General NHS Trust 2004?
Parties can’t be forced into ADR + therefore can’t be ‘punished’ if they don’t cooperate
Due to fact it goes against Art 6 ECHR - tight to a fair trial
Give an example of ADR
commonly used in employment disputes or when individual claims unfair dismissal
Advisory Conciliation Arbitration Service (ACAS)
When is the Advisory Conciliation Arbitration Service (ACAS) mostly used?
With employment disputes
OR when individual claims unfair dismissal
What are the 4 main forms of ADR?
- Negotiation
- Mediation
- Conciliation
- Arbitration
What happens in negotiation?
Resolves disputes by discussing, bargaining + reaching a conclusion
Solicitors can negotiate on your behalf (but ££ more)
@ most basic = returning faulty goods to a shop
What are parties encouraged to do in mediation?
How is this done?
Reach their own settlements
Neutral 3rd part acts as a ‘go between’
Role = consult both parties + IDs common ground
What is the role of the neutral 3rd party in mediation?
Acts as a ‘go between’
Role = consult both parties + IDs common ground
Doesn’t express their own views
Acts asa ‘facillitator’ so agreement can be reached
When is mediation commonly used?
Family disputes - where Rship needs to be maintained
Who is most likely to benefit from the use of mediation?
Companies - used to negotiating business contracts
BUT mediation = only suitable if = some hope that the parties will cooperate
Give an example of mediation?
Formalised Settlement Conferences
Describe formalised settlement conferences
Involve a mini-trial
Each side presents their case to panel of decision making executives (from each side) + neutral mediator
Once submissions = made, executives + NM evaluates 2 sides, reach decision
If executives don’t agree, NM mediates between them
Even if not resolved, it narrows down the issues
What are the 5 advantages of mediation?
- Good chance maintaining Rships (easier companies do future business, decisions about conduct? not in Ct J.ment)
- Non-confrontational (avoids adversarial nature of Ct)
- Cost effective (esp. in commercial cases)
- Cheaper (each side £ own, Cts looser £ all)
- Vol. M can promote early settlements
What are the 3 disadvantages of mediation?
- No guarantee matter = resolved, may end up in Ct anyway (more ££ + delays)
- If parties = forced, may be half-hearted about it, less likely to be successful
- Hazel Glen: amounts paid in mediation settlements = lower than those awarded by Cts
Why is Hazel Glen critical of mediation? (2)
- Amounts paid in mediation settlements = lower than the agreed in other settlements
- Amounts paid in mediation settlements = lower than amounts awarded by the courts
What method of ADR is conciliation similar to?
Similar to mediation
But 3rd party = more active (suggests grounds for compromise IOT push in direction of settlement)
What ar the advantages of conciliation?
ACAS adopts prevention rather than cure approach to dispute resolution
Other advantages = similar to mediation
What is a disadvantage of conciliation?
Heavily relies on skills of conciliator
Other disadvantages = similar to mediation
What Act are private arbitrations governed by?
Arbitration Act 1996
What is the decision made in arbitration called?
An ‘award’
= binding + enforceable by cts
Who is the arbitrator?
Someone other than a judge
Parties let this independent arbitrator to make the decision of the case
When can the decision to solve a dispute with arbitration be made?
At any time - before, during, after
Most agreements = in writing
Many commercial contracts involve a Scott v Avery clause
- parties agree that in event of a dispute, solve by arbitration
What is a Scott v Avery clause?
Used in many commercial contracts
Parties agree that in the event of a dispute will be solved by arbitration
What does the Arbitration Act 1996 give parties the ability to do in arbitration?
Parties = free to choose a number of arbitrators
If can’t agree, 1 will be appointed?
What happens if the parties can’t agree on the number of arbitrators to use?
Only 1 will be appointed
Who decides the details of the procedure in arbitration?
Details of procedure = left to parties
(date, time, place)
Manny different forms of parties
e.g. paper hearing
What is a paper hearing? (arbitration)
Both sides submit cases in writing with relevant documents
Arbitrators make a decision
Sometimes send all files in writing but make oral submissions at hearing
What are the advantages of arbitration? (7)
- Institue of arbitrators - parties have discretion to choice of arbitrator (decide if matter = best resolved by technical expert, lawyer, professional arbitrator)
- Hearing procedure = flexible, arrange to suit them
- Dealt with in private, no publicity
- If technical expert used, saves expenses of calling expert witnesses + explaining technicalities to judges
- Disputes = resolved quicker than courts
- = cheaper than courts
- Award = binding + enforceable by cts
What are the disadvantages of arbitration? (6)
- No legal aid (unequal footings)
- IF unexpected legal point arises, not always legal professional in hearing
- Professional arbitrators fees = high
- ££ is opt for formal hearing (e.g. calling witnesses to give evidence, lawyers)
- Chairman isn’t always as impartial as desired
- Process = not always quick (Alison Halford)
Describe Alison Halford issue with arbitration
Alison Halford = senior police officer in Manchester
Brought proceeding of sex discrimination against police authorities
2+ years from date of her original application to conclusion of case
What does the Institute of arbitrators allow parties to do?
Parties have discretion as to choice of arbitrators
- can decide if matter = best resolved by technical expert/ lawyer/ professional arbitrator
