ADR - Reasons, Types and Choice Flashcards
What are the types of ADR?
1) Negotiation
2) Mediation
3) Arbitration
4) Med-Arb
5) Early Neutral Evaluation
6) Expert Determination
7) Conciliation
What is the definition of negotiation?
Direct discussion between parties to reach compromise
What are the features of negotiation?
1) No third-party intervention
2) Informal and flexible
3) Cost-effective
4) Can be done at any stage
What is the definition of mediation?
A confidential process where a neutral mediator facilitates negotiations
What are the features of mediation?
1) Helps facilitate voluntary agreement
2) Non-binding unless both parties agree
3) Confidential
4) Parties stay in control of outcome
What is the definition of arbitration?
A formal dispute resolution where impartial adjudicator makes final and binding decision
What are the features of arbitration?
1) Governed by statute
2) More flexible than court proceedings
3) Private and confidential
4) Binding
What is the definition of Med-Arb?
A combination of mediation and arbitration. Will try mediation first, then go on to arbitration.
What is an Early Neutral Evaluation?
A neutral expert assesses case and gives non-binding opinion
What are the features of ENE?
1) Helps parties understand strength / weakness of case
2) Can influence negotiations
3) Independent expert can be industry specialist or lawyer
What is Expert Determination?
Binding decision by independent expert in relevant field
What are the features of expert determination?
1) Suitable for disputes requiring technical knowledge
2) Quicker than arbitration
3) Less formal than court
What is conciliation?
A neutral third party facilitates discussions to help resolve party disputes
What are the features of conciliation?
Similar to mediation, but conciliator may provide suggestions
Which forms of ADR are binding?
1) Expert determination
2) Arbitration
Which forms of ADR are confidential?
1) Mediation
2) Conciliation
3) Arbitration
Why use ADR?
1) Court expectations
2) Preserve relationships
3) Less expensive
4) Faster resolution
5) Privacy and confidentiality
6) Less disruptive
7) Wider range of legal remedies
8) Greater control
9) Greater party involvement
What is the best ADR method for ongoing commercial relationship?
Mediation
What is the best ADR method for legally binding decision?
Arbitration / Expert Determination
What is the best ADR method for technical dispute requiring specialist knowledge?
Expert determination
What is the best ADR method for dispute over contract terms?
Mediation or arbitration
What is the best ADR method for avoiding negative publicity?
Mediation or arbitration
What is the best ADR method for international dispute?
Arbitration
What is the best ADR method for fast, cost-effect?
Mediation or negotiation
