Alternative Dispute Resolution

Question 1

What are the 4 methods of resolving a dispute?

Answer 1

Mediation, Negotiation, Conciliation and Arbitration

Question 2

What does it mean when the Civil Procedure Rule allows the Judged to ‘stay’ court proceedings??

Answer 2

Temporarily stop court proceedings so both parties can try other methods of ADR (ie. mediate)

Question 3

What does the Advisory Conciliation and Arbitration Service receive?

Answer 3

A copy of an employment claim when filled at employment tribunal. ACAS then contacts parties to resolve dispute without court.

Question 4

What is negotiation?

Answer 4

Talks between both parties to come to some sort of agreement

Question 5

Name 3 advantages of Negotiation.

Answer 5

Completely private, quick and cheap

Question 6

“Negotiation can be done without using a lawyer in the first instance.” True or False?

Answer 6

True, if parties can’t come to an agreement, they may decide to involve a solicitor to try and negotiate on behalf of their parties- This involves cost

Question 7

How can negotiations take place?

Answer 7

Over the phone, face to face, via the internet by email or writing.

Question 8

“Everything discussed in negotiation cannot be used as evidence if trial goes to court.” True or False?

Answer 8

True, negotiations are conducted ‘without prejudice’

Question 9

What happens when a negotiation reaches a settlement?

Answer 9

Court proceedings will formally close by submitting a consent order

Question 10

What is meant by mediation?

Answer 10

When a neutral mediator helps parties to reach a compromise solution

Question 11

What is the role of a mediator?

Answer 11

Consult with each party and see how much common ground is between them. They explore the position with each party looking at needs and carrying offers whilst keeping confidentiality.

Question 12

“Mediators are not allowed to offer advice.” True or False?

Answer 12

False, mediator will usually offer own views relating to the dispute and can be asked for an opinion which can be given to try and reach agreement.

Question 13

Who is most likely to benefit from the mediation approach?

Answer 13

Companies used to negotiation contracts

Question 14

When is mediation suitable?

Answer 14

Only if there is hope that parties will co operate.

Question 15

What is a formalised settlement conference?

Answer 15

More formal method of approaching mediation. Involves a “mini-trial” where each side presents its case to a panel made up of decision making executives from each party and a neutral party. The executives, with the help of a neutral advisor, evaluate the positions. If executives can’t agree, neutral advisor acts as mediator between them.

Question 16

What is meant by conciliation?

Answer 16

Similar to mediation, as a neutral third party helps resolve dispute. Conciliator has a more active role then mediator.

Question 17

What does a conciliator be expected to do?

Answer 17

Suggest grounds for compromise and give possible basis for settlement. Provide impartial opinions. If doesn’t work, parties may be best to continue with court.

Question 18

Name an advantage of mediation (1)

Answer 18

Avoids adversarial conflict in court room.

Question 19

Name an advantage of mediation (2)

Answer 19

Private and informal- avoids the media that publicise court.

Question 20

Name an advantage of mediation (3)

Answer 20

Costs a lot less than court- meditator usually =£2000 a day, whereas a claim to court sometimes= over £500,000 (especially in big commercial claims)

Question 21

Name an advantage of mediation (4)

Answer 21

There is a ‘win-win” situation of resolved, rather than court which is a “win-lose.”
Also decision is not legal but commercial common sense.

Question 22

Name a disadvantage of mediation (1)

Answer 22

No guarantee the case will be resolved, it may still result in court. Decision is not legally binding.

Question 23

Name a disadvantage of mediation (2)

Answer 23

Parties are in control, therefore can leave any time

Question 24

Name a disadvantage of mediation (3)

Answer 24

Amount paid to the wronged party will cost significantly less than the cost awarded in court

Question 25

What is meant by arbitration?

Answer 25

Where parties agree to submit claims to private arbitration.

Question 26

What is private arbitration governed by?

Answer 26

Arbitration Act 1996

Question 27

Name the section of the act used to ensure fair resolution.

Answer 27

Section 1 of the Arbitration Act 1996- fair resolution by an impartial tribunal without unnecessary delay or expense

Question 28

What is the Scott V Avery clause?

Answer 28

Agreement of Arbitration- many commercial contracts contain an arbitration clause stating of dispute arises it will be settled by arbitration.

Question 29

“Parties are not free to agree on number of arbitrators.” True or False?

Answer 29

False, a panel of two or three arbitrators can be used instead of a single one. If parties can’t agree, Section 15 provides only one can be appointed. Act also says parties are free to agree on procedure to appoint arbitrator.

Question 30

Who are usually arbitrators?

Answer 30

Someone with expertise in particular field but if it involves a point of law, arbitrator will usually be a trained lawyer.

Question 31

What happens in an arbitration hearing?

Answer 31

Most cases conducted either by writing or orally. Arbitrator then reads all documents and makes decision. If done orally, parties send documents before and parties attend a hearing to make oral submissions. Witnesses can be called for arbitration.

Question 32

What is meant by the award?

Answer 32

The decision made by the arbitrator. It is binding and can be enforced by courts. Decision is final but can be challenged in courts for serious irregularity in proceedings. Granted under S. 68

Question 33

Name an advantage of arbitration (1)

Answer 33

Procedure is flexible. Parties can chose which procedure to use that best fits their situation resulting in more informal and relaxing hearing than court.

Question 34

Name an advantage of arbitration (2)

Answer 34

Private with no publicity.

Question 35

Name an advantage of arbitration (3)

Answer 35

Resolved quickly and cheaper than courts. Award is final. Challenge options are available for disagreement on point of law so ensures fair process

Question 36

Name an advantage of arbitration (4)

Answer 36

Parties have elements of control. They may chose their own arbitrator, and hearing times and places can be arranged by parties. This is to ensure venue is accessible along with the date.

Question 37

Name a disadvantage of arbitration (1)

Answer 37

Legal aid is not available- disadvantage for individuals fighting against big businesses. If the case had gone to court, the individual may have qualified for legal aid with a legal representative.

Question 38

Name a disadvantage of arbitration (2)

Answer 38

Fees of expert arbitrators- professional arbitrator fees are usually expensive. Alternatively if expert isn’t appointed, the arbitrator that is may not understand the law or have necessary skills to interpret it.

Question 39

Name a disadvantage of arbitration (3)

Answer 39

Delay for commercial and international arbitration is usually as big as in the courts, cost is also the same. This is why arbitration has lost its popularity with companies.