ADR And Tribunals Flashcards
What are the 4 main forms of ADR?
Negotiation, mediation, conciliation and arbitration.
What happens during negotiation?
The parties themselves solve the issue.
What happens during mediation?
The parties solve the problem with the help of a 3rd party. The mediator will usually not share his own views of the situation but will try and help the parties reach a compromise solution.
What happens during conciliation?
Parities discuss the issue with the help of a neutral 3rd party who actively suggests solutions. Conciliator has a more pro-active role than an arbitrator.
What happens during arbitration?
Parties agree to discuss and to let a 3rd party make a binding decision.
What are 4 advantages of negotiation?
1) Can be conducted by the parties themselves.
2) Can be used at any point in the dispute (in the beginning, up to the start of a court hearing)
3) Is the cheapest method of solving a dispute, especially if you don’t get lawyers involved.
4) A negotiation resolution can also involve agreements about future business deals (can also be done in mediation and conciliation).
What are 3 disadvantages of using negotiation?
1) It may not be successful.
2) Would not be suitable if the opposing parties are not willing to co-operate.
3) If the negotiation attempts are repeatedly unsuccessful it will prolong the whole situation.
What are the 4 advantages of using mediation and conciliation?
1) Parties are in control.
2) The decision made does not need to be strictly legal.
3) Future business deals can be discussed (Doesn’t happen in court).
4) Avoids the conflict of the court room.
Give some evidence of the advantages of mediation and conciliation.
The Centre for Dispute Resolution claims that over 80% of the cases it is asked to act are settled. Even if the parties do not resolve the case in mediation or conciliation they are more likely to resolve the issue without going to court or at least the issue may have been clarified for both parties, making court hearings quicker if they are required to take place.
What are 3 disadvantages of mediation and conciliation?
1) There is no guarantee that the issue will be resolved - additional cost and delay to the solution.
2) successful mediation and conciliation requires a skilled mediator or conciliator so the weaker party is not forced into a settlement.
3) The amounts paid in mediated settlements are often lower than the amounts agreed in other settlements, and are considerably lower than amounts awarded by the courts.
What are the principles of the Arbitration Act 1996, s1?
1) The objective of arbitration is to obtain the fair resolution of disputes by an impartial tribunal without unnecessary delay or expense.
2) The parties should be free to agree how their disputes are resolved, subject only to such safeguards as are necessary in the public interest.
Arbitration can be agreed upon or can be …
Put in a Scott v Avery clause in a contract which states that in the event of a dispute arising between the parties, they will have that dispute settled by arbitration. Courts will usually require the parties to attend the arbitration they agreed upon before the issue proceeds to court with the exception of certain cases.
What can the parties decide regarding the arbitrator?
How many - 1, 2 or 3 (if the parties cannot decide one will sit.
They parties can also decide on the appointment of an arbitrator.
Can witnesses be called in arbitration hearings.
Yes and the Arbitration Act 1996 allow the use of court procedures to ensure the attendance of witnesses.
What is the arbitrators decision called?
It is called an award and can be enforced through the courts if necessary. Decision is final but can be challenged if there are serious irregularities in the proceedings or on points of law.
