ADR and ODR Flashcards
What is ADR?
Any method of resolving a dispute without resorting to using the courts
What’s negotiation?
The process of trying to come to an agreement
What are 4 advantages of using negotiation?
1) can be conducted by the parties themselves, no need for lawyers
2) can be used at any point in the dispute, from the beginning right up to the start of a court hearing
3) cheapest method of resolving a dispute
4) can include agreement about future business deals
What are 3 disadvantages of using negotiation?
1) may not be successful so other ADR or court proceedings have to be used
2) not suitable where the parties are very antagonistic towards each other, won’t be prepared to cooperate in finding a resolution
3) if there are repeated unsuccessful attempts at negotiation it may prolong the whole issue
What’s mediation?
Using a neutral person in a dispute to help parties come to a comprise solution
The role of a mediation is to consult with each party and see how much common group there is
They will explore the position with each party, look at their needs, carry offers to and fro while keeping confidentiality
The parties are in control they make the decisions
In family cases they must show they have attended a MIAM before starting any courting proceedings
What’s conciliation?
Similar to mediation
Neutral third party helps to resolve the dispute but the conciliator will play a more pro-active role
Discuss the issue with both parties to help them reach a better understanding of each other’s position and suggest grounds for compromise and the possible basis for a settlement
What’s 4 advantages of mediation and conciliation?
1) parties are in control, can withdraw at any point in the process, compromise can’t be reached without both parties agreeing
2) decision need not be strictly legal, more likely based on commercial common sense and compromise
3) makes it easier for companies to do business with each other in the future, may include agreements about the conduct of future business between the parties which can’t happen if the court gives judgement as the courts only concerned with present dispute
4) avoids adversarial conflict of the court room/ winner loser result of court proceedings, everyone wins
What’s 3 disadvantages of mediation and conciliation?
1) no guarantee the matter will be resolved then it will be necessary to go to court which adds to cost and delay
2) successful resolution requires skilled mediators/conciliatory either natural talent, honed skills, accumulated experience so it doesn’t become a bullying exercise where the weaker party may be forced into a settlement especially in conciliation where conciliator plays a more active role in the compromise
3) amounts paid in settlements are often lower than agreed in other settlements and especially awarded by court
What’s arbitration?
It’s the voluntary submission by the parties of their dispute to the judgement of some person other than a judge
1) where the courts use a more informal procedure to hear cases
2) where parties agree to submit their claims to private arbitration (ADR)
What is meant by the agreement to arbitrate and what is the relation to the Scott v Avery clause?
It can be made by the parties at any time, before a dispute arises, when the dispute becomes apparent or after the dispute arises
It’s a clause where the parties in their original contract agree that in the event of a dispute arising between them they will have that dispute settled by arbitration
Explain the role of the arbitrator?
Arbitration act states that the parties are free to agree on the number of arbitrators if they can’t agree, only 1 will be appointed
The parties are free to agree on the procedure of appointing an arbitrator (name one or provide a method of choosing one)
Arbitrator will have expertise in the field but if the dispute involves law they may appoint a lawyer
If there is no agreement on who/how to appoint the court can be asked to appoint an appropriate arbitrator
Explain the arbitration hearing?
Paper arbitration is where the parties put the points they wish to raise into writing and submit it with any relevant documents to the arbitrator who will read the documents and make a decision OR before a decision is made the parties will attend a hearing where they make oral submissions, a witness may be called to give evidence if they’re asked to dear in oath the procedure will be very formal
The date, time, place is decided by parties in consultation with the arbitrator
Explain what is meant by the award?
It’s the decision made by the arbitrator and is binding on the parties which can be enforced through courts if necessary
What are 8 advantages of arbitration?
1) parties may chose their own arbitrator so can decide whether the matter is best dealt with by a technical expert, lawyer or professional arbitrator
2)
What are 5 disadvantages advantages of arbitration?
Fill in
