ADR/tribunals Flashcards

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1
Q

why would people use negotiation and the procedure (5)

A

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

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2
Q

what are 4 advantages of negotiation

A

NOT LEGALLY BINDING.
INFORMAL conducted without lawyers
LOW COST/no cost
No skills needed

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3
Q

what are 3 disadvantages of negotiation

A

One party not prepared to negotiate/wants to go to court
NOT LEGALLY BINDING
no resolution

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4
Q

what is mediation? (5)

A

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

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5
Q

what are the advantages for mediation? 4

A

NOT LEGALLY BINDING
avoids aggressiveness of court
cheaper than a court case (pay for M)
neutral and trained

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6
Q

what are the disadvantages for mediation? 3

A

not legally binding
relies on parties cooperation
relying off of someone

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7
Q

What type of disputes does arbitration deal with?

A

Commercial, mainly contract cases/ high profile sporting cases - Suarez - contract cases - Kabab v Kout food group (point of law)

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8
Q

What Act governs arbitration?

A

Arbitration Act 1996

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9
Q

Where do you get an arbitrator from?

A

Institute of arbitrators

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10
Q

What is a Scott v Avery clause

A

Clause in contract that in the event of a dispute parties will go to arbitration

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11
Q

Why is arbitration more formal and different to all the other methods?

A

The outcome is binding.

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12
Q

4 advantages of arbitration

A

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

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13
Q

4 disadvantages of arbitration

A

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.

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14
Q

What Act is involved in mediation for family cases?

A

Family Law Act 1996 / Child and Families Act 2014

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15
Q

What type of cases does conciliation deal with?

A

Commonly used in industrial disputes / workplace

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16
Q

What is the role of the third party in conciliation?

A

Third party plays an active role.

17
Q

Where can you get a conciliator from?

A

ACAS

18
Q

Example of conciliation

A

Myers v Nottingham city council - And ACAS has had increased use due to covid.

19
Q

3 Advantages of conciliation

A

1) It is cheaper than court.
2) It is private and confidential.
3) It identifies and clarifies the main dispute.

20
Q

2 disadvantages of conciliation

A

1) Heavily relies on skills of conciliator.
2) Dispute may end up in court anyway, resulting in more costs.

21
Q

Tribunals

A

Specialist Courts established after the setting up of the welfare state to give people the opportunity to enforce their rights.

22
Q

Tribunals are overseen by

A

HMCTs

23
Q

3 different types

A

Administrative, Domestic and Employment

24
Q

Administrative tribunals

A

Deal with disputes between individuals and state.

25
Q

Domestic tribunals

A

These are internal tribunals e.g law society and medical council.

26
Q

Employment tribunal

A

Biggest use of tribunals- disputes between employers and employees

27
Q

Who does a tribunal consist of?

A

Judge (chairperson), one representative for each side.

28
Q

What Act made tribunals how they are today?

A

Tribunals, Courts and Enforcement Act 2007

29
Q

5 Advantages -

A

1, Cost 2, Speed 3, informality 4, expertise 4, Independence

30
Q

4 Disadvantages

A

1, Lack of funding 2, delay 3, Intimidated parties 4, Lack of precedent.

31
Q

what is the role of a mediator?
5

A

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.

32
Q

what happens during a tribunal?

A

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