ADR - alternative , dispute , resolution Flashcards
why is ADR used?
ADR, is used as an alternative way of resolving issues other than going to court
what statute allows judges to stop a case and refer the parties to ADR
the civil procedural rules 1988 allows judges to stop a case and refer the parties to adr
give an example of the use of ADR
ACAS - advisory, conciliation, and arbitration service is used for employment disputed
what are the types of ADR
- negotiation
- mediation
- conciliation
- arbitration
- tribunals
explain negotiation as a type of ADR?
negotiation is a type f ADR used to resolve disputes by discussing, barging, and coming to a conclusion with another person
adv of negotiation
- completely free
- less time consuming
- informal which can be less stressful than other proceeding s
disa of negotiation
- does not always work
- parties may not feel up to negotiate if there is unequal barging power
- difficult to enforce as things are legal binding
explain mediation as a type of ADR?
mediation is used to consult each party and find common ground between them, the mediator acts as a natural facilitator that acts as a go between
when does mediation work \?
mediation only works if both paies can cooperate
what is the formal type of mediation called ?
FORMALISED , SETTLEMENT CONFERENCE
what is a formalized settlement conference
is a formal type of mediation that involves a mini-trial where each side presents its case and the natural advisor here’s both sides
adv of mediation
- it is easier for companies to do business with each other in the future , no bad blood
- it avoids confrontational nature of the court room
- it is cheaper for both parties as ecah party pays its own costs
disadv of mediation
- no guarantee the matter will be resolved there is a possibility the parties will still end up in court
- gen felt like the mediations were controlled by the mediators who force parties into settlements they don’t want to be in
explain conciliation
( ADV and disadv are similar to mediation
conciliation is similar to mediation however a netuarl party helps resolve the issues , the main difference is the conciliator plays more of an active role than the mediator
explain arbitration as a form of ADR
- private arbrituration is governed by the arbitration act 1996
- arbitration is the voluntary submission by the parties to a dispute a judgement to some other person other than a judge
what statute governs arbitration
THE ARBITRATION ACT 1996
when can the agreement of arbitration be made
the agreement can be made at any time by the parties, it can be made before a dispute arise or when it becomes apparent that includes a contract named the Scott v Avery clu
clause
what is the scott v avery clause?
the Scott v Avery clause is a part of the contract that both parties sign that agrees they will have the dispute settled by arbitration if a dispute arises
what does the arbritutaor acr 1996 state ?
that both paries are free to agree on a number of arbriatortos , if they cannot agree on a number one abritatory will be appointed
what is the arbitrator hearing ?
the arbitrator hearing is when both parties agree on a type of hearing they would like to resolve or present their sides, there is a paper hearing and oral submissions where witnesses can be called
what is the important thing to remember about arbitrators
an arbitrator hearing is binding and can be enforced by the courts which is very different to the other forms of ADR
what are tribunals
tribunals act as a specialist court for disputes in specialized areas example employment diputes often resolved by tribunals
what are the three types of tribunals?
- administrative - disputes between individuals and the state
- domestic - internal tribunals for private bodies such as the law society
- employment - hear disputes between employers and employees
what is the difference between arbitration and tribunals
the essential difference is that if a case fails in the tribunal system there is no redress to the courts whereas in arbitration there is an option of seeking redress within the court system
when did the tribunal system begin
the UK tribunal system began with the national insurance act 1911 which provided adjudication of disputed by administrative agencies
what did the franks committee 1957 recommned?
the franks committee 1957 receommened the tribunal procedure to be an example of openness , fairness and impartiality which was implemented in the tribunals and inquires act 1958.
why was the council of tribunals 1958 established?
this was established to supervise and review tribunal procedures, this body delet with complaint and submitted recommendations for reform
what leads to the tribunals , courts, and enforcement act 2007?
sir andree legattes report in 200 lead to the tribualns courts and enfirmcent act 2007 as this act incorporated many of leggets reforms such as making two tribunals
what does the first tribunal conist of?
the first tier tribunal consist of 7 chmabers that have similar procedures and jurisdiction including heath and education , war and pensions , taxation
what does the upper tribunal consist of?
the upper tribunal consists of four different chambers including the administrative active Appeals Chamber, the Tax and Chancery Chamber, the Lands Chamber and the Asylum and Immigration Chamber.
what is the upper tribunal responsible for ?
the upper tribunal is responsible for hearing appeals and hear cases of the first instance
evaluation
positive of tribunals
-COSTS , it is cheaper to pursue a claim in a tribunal as parties are encouraged to represent themselves
- FORMALITY - less informal than traditional courts although my formal than some forms of ADR
SPEED - there is a duty of the tribunal judge to make sure that a case is here in one day due to the strict timetables
NEGATIVE OF TRIBUNALS
LACK OF FUNDING , legal funding is not valaible for many cases in tribunals whihc can negativy impact a person who is taking on a big company
- LACK OF PRECEDENT, Tribunals do not operate a strict systme of precdent which means that case outcomes vary and arent persistent
- PARTY IMTIMIDATION- there is still big intimidation to take big companies to court
