ADR - Section B Flashcards
What is ADR?
Alternative Dispute Resolution or ADR, is the means of resolving a dispute without having to go to court.
What are the four main types of ADR?
Negotiation Mediation Conciliation Arbitration
What is negotiation in ADR?
Involves solving the dispute with the parties directly. Could involve solicitors that result in a settlement before the court date. Modern methods of negotiation, such as DIY and online. Biggest method of ADR, completely private, easy, and minimum cost involved.
What is mediation in ADR?
Involves having a third party acting as a referee, and is particularly popular in family cases, such as depicted in the Family Law Act 1996. Modern methods include online mediation, mediation centres. The mediator cannot suggest ways to compromise, the parties must achieve this themselves. Risk of it becoming seen as compulsory as illustrated in Dunnet v Railtrack where an adverse costs order was given to parties who refused to mediate. 2011 - Introduction of MIAMs which are Mediation Information Meetings and this is a compulsory initial meeting for all divorcing couples. The meeting costs around £140.00 and will assess whether your case is suitable for resolution through mediation or whether court would be more appropriate.
What is conciliation in ADR?
Involves a third party taking a more active role in suggesting in ways to come to a settlement. Common in industrial disputes - ACAS is the biggest conciliatory body. Prevention rather than cure approach. Also used in access to services for the disabled. Conciliation can also be used to prevent industrial strikes
What is arbitration in ADR?
Governed by the Arbitration Act 1996 - Common in commercial contracts and sporting disputes. Award is binding on the parties. Flexible procedure - number of witnesses, where, when, time, etc. Can choose specialist in the field or legal professional as arbitrator. Must be carried out in a judicial manner in line with natural justice. Scott v Avery clause - agreement to arbitrate before contract.
Arbitration Act 1996
- 1 Arbitration Act 1996 states,
(a) The object of arbitration is to obtain the fair resolution of disputes by an impartial tribunal without unnecessary delay or expense;
(b) The parties should be free to agree how their disputes are resolved, subject only to such safeguards as are necessary in the public interest.
The actual procedure is left to the agreement of the parties in each case, so that there are many forms of hearing:
Arbitration
- An agreement to arbitrate will usually be in writing; the Arbitration Act 1996 applies only to written arbitration agreements. The precise way in which the arbitration is carried out is left almost entirely to the parties agreement.
- S15 Arbitration Act 1996 states that parties are free to agree on the number of arbitrators, so that a panel of two or three may be used or there may be a sole arbitrator. If the parties cannot agree on a number that the Act provides that only one arbitrator should be appointed.
- The Act also says that the parties are free to agree on the procedure for appointing an arbitrator. Most agreements will either name an arbitrator or provide a method of choosing one. It is often provided that the president of the appropriate trade union will appoint the arbitrator.
- The Institute of Arbitrators provides trained arbitrators for major disputes. In many cases, the arbitrator will be someone who has expertise in the particular field involved in the dispute, but if the dispute involves a point of law the parties may decide to appoint a lawyer.
- If there is no agreement on whom or how to appoint, then, as a last resort the court can be asked to appoint an appropriate arbitrator.
Paper Hearing
This is where the two sides put al points they wish to raise into writing and submit this, along with any relevant documents, to the arbitrator. He will then read all the documents, and make is decision.
Oral Hearing
Once the arbitrator has all the documents, both parties will attend a hearing at which they make oral submissions to the arbitrator to support their case.
Decision
The decision made by the arbitrator is called an award and is binding on the parties. It can even be enforced through the courts if necessary. The decision is usually final, though it can be challenged on the grounds of serious irregularity in the proceedings on a point of law.
