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Law CIE > ADR and Tribunals > Flashcards

ADR and Tribunals Flashcards

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1
Q

What does ADR stand for?

A

Alternative Dispute Resolution

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2
Q

What are the main 4 ADR methods in England and Wales?

A

Negotiation, Mediation, Conciliation and Arbitration

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3
Q

What is negotiation?

A

Used to prevent disputes reaching court where they could be resolved by other means, negotiation is a dialogue between two parties in which they reach a suitable compromise relating to their dispute

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4
Q

What are the advantages of negotiation?

A
  • Speed
  • Privacy
  • Low cost
  • Ease of use
  • Informality
  • High success rates
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5
Q

What are the disadvantages of negotiation?

A
  • Power imbalance
  • Lack of law
  • No precedent
  • Not enforceable
  • Court involvement
  • Low success rates
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6
Q

What is mediation?

A

Mediation is a process in which parties voluntarily resolve their issues in an informal environment, with the assistance of an impartial facilitator

The third-party does not side with anyone, but rather lets each side know if they have an overly optimistic view of their position

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7
Q

What power, if any, does the third party have in mediation?

A

The third-party has no power over the participants, except the power of persuasion

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8
Q

What does a facilitative mediator do?

A

Examines the real interests and concerns of the parties, supporting the dispute rather than the legal aspects

A facilitative mediator will not give their opinion about the strengths of each party’s case, or put forward ideas for settlement

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9
Q

What does an evaluative mediator do?

A

Gives their opinion about the strengths of each party’s case, and/or puts forward ideas for settlement

This has to be agreed to by the parties beforehand and recorded, otherwise the mediation must be entirely facilitative

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10
Q

What are the advantages of mediation?

A
  • Flexible
  • Quick resolution
  • Cost effective when compared to litigation
  • Can be arranged quickly
  • A third party assists with the negotiation
  • Confidential and private
  • Prevents adverse precedent by the courts
  • Avoids stress and trauma to the parties
  • Allows the parties to form a creative settlement
  • Even if it does go to court, the parties have a better understanding of each others’ case
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11
Q

What are the disadvantages of mediation?

A
  • Cases ending up in court would incur extra costs
  • Can be ineffective if court-ordered
  • Being forced into mediation could lead to little commitment to form an agreement
  • There may not be a level playing field with more ‘powerful’ party who is able to manipulate
  • The government has been slow to promote ADR
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12
Q

What is conciliation?

A

Conciliation is the same process as mediation, except the conciliator will not be selected by the parties

The conciliator takes a more active role than a mediator, putting forward ideas for compromise

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13
Q

What are the advantages of conciliation?

A
  • Flexible
  • Quick resolution
  • Cost effective when compared to litigation
  • Can be arranged quickly
  • A third party assists with the negotiation
  • Confidential and private
  • ACAS adopts an approach that looks at prevention rather than the cure. Helps to mend relationships
  • Identifies and clarifies the main issues of the dispute
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14
Q

What are the disadvantages of conciliation?

A
  • There is a greater reliance on the conciliator

- Cases ending up in court would incur extra costs

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15
Q

What is arbitration?

A

Arbitration is a procedure in which both parties agree to let a third party, the arbitrator decide on a resolution

To the general public, this looks like a court, but there are two very distinct differences
Both parties must agree to solving the dispute using an arbitrator
Arbitrators are appointed by the parties, not by the state

But both parties agree to be bound by the decision

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16
Q

What does the Scott v Avery clause mean?

A

This means that both parties agree to having their case dealt with by arbitration. If the contract is with a consumer for a small claims, the consumer may consider passing the Scott v Avery clause to instead deal with the case via the small claims track.

17
Q

What are the advantages of arbitration?

A
  • Less adversarial – it is a less antagonistic procedure, fewer rules of evidence
  • Privacy
  • The parties can choose the venue
  • Informality - No timetable with parties choosing how a matter is dealt with
  • Speed
  • Cost
  • Expertise. The arbitrator is usually an expert in the field/area of dispute and this should guarantee a fair outcome
  • The decision will be legally binding on the parties
18
Q

What are the disadvantages of arbitration?

A
  • Legal aid is not available
  • Some arbitrators are expensive
  • Appeal rights are limited
  • If there are significant legal points, a lay arbitrator cannot deal with this
  • A lack of professional commercial arbitrators means delays for commercial arbitration
19
Q

What is the purpose of tribunals?

A

Tribunals were put in place to enforce social rights, relating to issues such as medical negligence and employment.

20
Q

What rights do tribunals protect?

A
  • The right not to be unfairly dismissed
  • The right not to be discriminated against
  • The right to political asylum in the UK
21
Q

What is the name of the act that unified the structure of tribunals?

A

The Tribunals, Court and Enforcement Act 2007

22
Q

What did the Tribunals, Court and Enforcement Act 2007 do?

A

Unified the structure of tribunals

23
Q

Cases in the first-tier tribunals will be tried by…

A

a judge or a judge with two lay (non-legal) members who specialise practically in the area of complaint

24
Q

Cases in the upper-tribunals have an appeal route. What is it?

A

Upper tribunal&raquo_space; Court of Appeal&raquo_space; Supreme Court

There is an appeal route from upper tribunals but only on a point of law (not being unhappy with the result)

25
Q

What is the time limit for an application to the employment tribunals?

A

3 months

26
Q

Cases in employment tribunals will be heard by…

A

2 lay members who are members of an employee organisation and a member of an employers organisation

27
Q

What can the court do upon appeal from a tribunal?

A
  • Quashing Order
  • Prohibitory Order
  • Mandatory Order
28
Q

What is a quashing order?

A

If the Tribunal has done something that is ultra vires, the Administrative Court may make an order to cancel that of the Tribunal

29
Q

What is a prohibitory order?

A

Where the wrong level or type of Tribunal is hearing a case, an application may be made to prevent that court from doing so. This is because they would otherwise be acting ultra vires

30
Q

What is a mandatory order?

A

The Administrative Court can order a Tribunal to carry out a duty or process that it is bound to do

31
Q

What are the strengths of tribunals?

A
  • Cost-effectiveness
  • Speed
  • Informality
  • Expertise
32
Q

What are the weaknesses of tribunals?

A
  • Lack of funding?
  • Delay
  • Formality compared to ADR
  • Legal disadvantage
33
Q

What is the purpose of inquiries?

A

Inquiries exist to examine specific issues or events. These are temporary systems, unlike tribunals

34
Q

What are the strengths of inquiries?

A
  • Witnesses may be compelled to give evidence
  • Provides a sense of justice for the public
  • Major health and safety measures have followed
  • Any chair who has potential bias will step down
  • A written report follows an inquiry
  • Can lead to new laws or policies
35
Q

What are the weaknesses of inquiries?

A
  • It takes a long time to organise witnesses’ attendance
  • They can take a long time
  • The government minister will choose the members
  • Chair people can change frequently
  • The written report can take a long time to write
  • The government minister can stop publication of the report

Law CIE (7 decks)

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