ADR/tribunals Flashcards
why would people use negotiation and the procedure (5)
Two parties resolve dispute together
get a solution without using the courts
face to face or in writing
can involve solicitors
carry on negotiating throughout the trial
what are 4 advantages of negotiation
NOT LEGALLY BINDING.
INFORMAL conducted without lawyers
LOW COST/no cost
No skills needed
what are 3 disadvantages of negotiation
One party not prepared to negotiate/wants to go to court
NOT LEGALLY BINDING
no resolution
what is mediation? (5)
3rd party mediator acts as a messenger
Acts as a go-between, don’t have to meet.
MUST REMAIN NEUTRAL no influence
selected from CDR (trained)
deal with CONTRACT+FAMILY LAW
what are the advantages for mediation? 4
NOT LEGALLY BINDING
avoids aggressiveness of court
cheaper than a court case (pay for M)
neutral and trained
what are the disadvantages for mediation? 3
not legally binding
relies on parties cooperation
relying off of someone
What type of disputes does arbitration deal with?
Commercial, mainly contract cases/ high profile sporting cases - Suarez - contract cases - Kabab v Kout food group (point of law)
What Act governs arbitration?
Arbitration Act 1996
Where do you get an arbitrator from?
Institute of arbitrators
What is a Scott v Avery clause
Clause in contract that in the event of a dispute parties will go to arbitration
Why is arbitration more formal and different to all the other methods?
The outcome is binding.
4 advantages of arbitration
1) parties have discretion as to choice of arbitrator, venue, time.
2) rarely any publicity
3) Award is binding
4) arbitrator is an expert in the field
4 disadvantages of arbitration
1) No public funding available.
2) appeals are restricted
3) Parties may feel that they don’t get their day in court.
if legal point arises not always legal profession to assist.
What Act is involved in mediation for family cases?
Family Law Act 1996 / Child and Families Act 2014
What type of cases does conciliation deal with?
Commonly used in industrial disputes / workplace
What is the role of the third party in conciliation?
Third party plays an active role.
Where can you get a conciliator from?
ACAS
Example of conciliation
Myers v Nottingham city council - And ACAS has had increased use due to covid.
3 Advantages of conciliation
1) It is cheaper than court.
2) It is private and confidential.
3) It identifies and clarifies the main dispute.
2 disadvantages of conciliation
1) Heavily relies on skills of conciliator.
2) Dispute may end up in court anyway, resulting in more costs.
Tribunals
Specialist Courts established after the setting up of the welfare state to give people the opportunity to enforce their rights.
Tribunals are overseen by
HMCTs
3 different types
Administrative, Domestic and Employment
Administrative tribunals
Deal with disputes between individuals and state.
Domestic tribunals
These are internal tribunals e.g law society and medical council.
Employment tribunal
Biggest use of tribunals- disputes between employers and employees
Who does a tribunal consist of?
Judge (chairperson), one representative for each side.
What Act made tribunals how they are today?
Tribunals, Courts and Enforcement Act 2007
5 Advantages -
1, Cost 2, Speed 3, informality 4, expertise 4, Independence
4 Disadvantages
1, Lack of funding 2, delay 3, Intimidated parties 4, Lack of precedent.
what is the role of a mediator?
5
The role of a mediator (mediation) is a form of alternative dispute resolution where the dispute can be
settled ‘out of court’.
* A mediator is neutral between the two parties to a dispute.
* The mediator moves between the parties to find a compromise to their dispute.
* A mediator will seek to understand the parties’ positions in order to find common ground.
* A mediator can convey offers between the parties.
what happens during a tribunal?
Witnesses give evidence, examined
Legally trained chair person
2 lay persons present
Employment tribunals now charge a fee
Parties encouraged to represent themselves rather than legal rep
Both sides put forward their case
