ADR and tribunals Flashcards
What legislation allows judges to refer parties to ADR?
The Civil Procedure Rules 1998.
What are the four types of ADR?
Negotiation, Mediation, Conciliation and Arbitration.
What is negotiation?
An out of court settlement where you discuss and bargain with the other party to reach an agreement. Lawyers may negotiate on behalf of their clients.
What is an advantage and a disadvantage of negotiation?
Completely free but it does not always work.
What is mediation?
A neutral mediator acts as a ‘facilitator’ to help parties reach an agreement. There are commercial mediation services like the Centre for Dispute Resolution.
What are the advantages of mediation?
It is easier for businesses to do business in future, It is very cost effective in commercial cases and it avoids the adversarial nature of a courtroom.
What are the disadvantages of mediation?
The main disadvantage is there is no guarantee the matter will be resolved and you may still end up in court. Research by Hazel Genn also found that amounts paid out in mediation settlements are much lower.
What is conciliation?
Similar to mediation but the facilitator help to resolve the dispute by taking a more active role.
What is arbitration?
Under the Arbitration Act 1996 it is the voluntary submission to the resolution of a dispute by some person other than a dispute. Many contracts will have a Scott v Avery clause which states that any problems will be resolved by arbitration.
What are the advantages of arbitration?
The process is normally cheaper than court, the award is final and enforceable by the courts and the parties may choose their own arbiter.
What are the disadvantages of arbitration?
There is no legal aid available, professional arbiter’s fees are high and sometimes the arbiter is not as impartial as desired.
What is a tribunal?
A ‘specialist court’ for disputes in specialist areas.
What are the three types of tribunals?
Administrative, Domestic and Employment.
What is the usual composition of a tribunal?
A neutral chairperson and one representative from each side.
What Act created tribunals and what Act created the modern day tribunal?
The National Insurance Act 1911, the Tribunals Courts and Enforcement Act 2007.
