Alternative Dispute Resolution Flashcards
What is ADR? Some benefits? Where it came from?
A way of solving a dispute without going to court
Parties have greater involvement in decision making
Private
Cheaper & quicker than court
ADR encouraged following Woolf reforms
What is Arbitration?
The most formal way of resolving a dispute
What is “paper arbitration”?
Arbitration done in writing
Who is the case decided by in A?
Independent Arbitrator decides who gets an award & bound by the outcome
What do the parties choose in A?
A mutually convient time & date
The formality
The arbitrator either a lawyer or an expert
What happens in A if parties can not agree on an Arbitrator?
The Institute of Arbitrators will probide a skilled arbitrator
Is the decision final in A?
Yes & can be enforced by the courts
What does S69 of the Arbitration Act 1996?
Decision can be challenged in Queen’s Bench Division of the High Court on a point of law or if there are signs of serious irregularity
E: Arbitration is private
Businesses may not wish to publicise their disputes
Can help businesses which trade with each other to remain on good terms withtout the publicity of a court case
E: Parties choose an Arbitrator but can not choose a judge
Can decide how & when the dispute will be heard, issue is resolved at a mutually convenient time, in a suited way
May wish to appoint arbitrator with requisite expertise to decide on technical disputes
E: Disadvantage of Arbitration
Delays in obtaining an atbitrator and choosing a mutually convenient time & date for hearing
E:Disadvantage of Arbitration 2
Commercial arbitrators can be expensive so not much of a saving in comparison to court
No legal aid is available
E:Disadvantage of Arbitration 3
If dispute has legal issue then it will not be appropriate for an arbitrator
E: Disadvantage of Arbitration 4
Decisions of arbitrator can not always be enforced in same way a court’s decision can
Appeal routes are available but more limited than those available for court proceedings
What is Negotiation?
The least formal way to resolve a dispute
Try to negotiate a settlement before court action is taken
Easiest way to settle dispute
What Negotiations take place?
Between the parties of the dispute
Between solicitors of the parties in the run up to the civil trial and continue once claim is made & when parties are awaiting trial
What is Mediation?
Independent third party meets with parties to attempt to get them to reach a settlement
What is a Mediators role?
They dont make suggestions but they facilitate parties to make decisions for themselves
An example of how mediation could be used?
A mini-trial held between parties and neutral mediator
When is mediation usually used?
In family disputes
What are mediators usually trained in?
Counselling skills
What does the Family Law Act 1996 attempt to do for mediation?
Encourages divorcing couples to use mediation instead of the courts
Who is mediation popular with?
Businesses as it helps to preserve commercial relationships
Local councils to helo solve neighbour disputes
What is Conciliation?
Similar to mediation but the conciliator plays a more active role in trying to resolve the dispute
What is a Conciliator?
A neutral third party actively tries to get the parties to reach a settlement by offering suggestions
How does a conciliator conciliate?
Meets with the orties separately then goes between the two parties suggesting solutions
What does a conciliator offer?
A non-binding opinion on how they should settle the dispute
Why is conciliation useful to businesses?
It allows a business to access the strength of their case before they take it to court
E: Informal Methods
-Keep parties on good terms
Businesses still work together
Families still on speaking terms
Neighbours learn to live together
Mediation & Conciliation in particular aim to preserve the relationships between parties
Negotiation is also a quick way of achieving this
E:Informal Methods
-Cheaper
Research suggests that commercial mediation can dave a business more than £1 billion every year in court fees and other expenses
Mediation-cheaper & quicker which is especially useful in family cases where legal aid is not available
E:Informal Methods
-Decisions can be made in best interest if the parties
Use common sense rather than law rules to provide a more suitable outcome
Common sense decision more likely as parties involved in the decision making
E:Informal Methods
Mediation & Conciliation
-speaking terms
M&C can only be used if parties are on speaking terms
If relations have completely broken down then there is alternative but court proceedings
M&C inappropriate in family cases where allegations of abuse for example
E:Informal Methods
-If unsuccessful have to go court
If these methods do not work then the parties will still have to go to court
Delay and add expense to the overall resolution
Legal aid not available for any forms of ADR
E:Informal Methods
-Skilled Mediator
Mediation is only effective if the mediator is skilled at their job
Settlement agreed by mediator could be much lower than if oarties had gone to court
Outcomes of M&C are not binding
