Alternative Dispute Resolution

Question 1

What is ADR? Some benefits? Where it came from?

Answer 1

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

Question 2

What is Arbitration?

Answer 2

The most formal way of resolving a dispute

Question 3

What is “paper arbitration”?

Answer 3

Arbitration done in writing

Question 4

Who is the case decided by in A?

Answer 4

Independent Arbitrator decides who gets an award & bound by the outcome

Question 5

What do the parties choose in A?

Answer 5

A mutually convient time & date
The formality
The arbitrator either a lawyer or an expert

Question 6

What happens in A if parties can not agree on an Arbitrator?

Answer 6

The Institute of Arbitrators will probide a skilled arbitrator

Question 7

Is the decision final in A?

Answer 7

Yes & can be enforced by the courts

Question 8

What does S69 of the Arbitration Act 1996?

Answer 8

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

Question 9

E: Arbitration is private

Answer 9

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

Question 10

E: Parties choose an Arbitrator but can not choose a judge

Answer 10

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

Question 11

E: Disadvantage of Arbitration

Answer 11

Delays in obtaining an atbitrator and choosing a mutually convenient time & date for hearing

Question 12

E:Disadvantage of Arbitration 2

Answer 12

Commercial arbitrators can be expensive so not much of a saving in comparison to court
No legal aid is available

Question 13

E:Disadvantage of Arbitration 3

Answer 13

If dispute has legal issue then it will not be appropriate for an arbitrator

Question 14

E: Disadvantage of Arbitration 4

Answer 14

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

Question 15

What is Negotiation?

Answer 15

The least formal way to resolve a dispute
Try to negotiate a settlement before court action is taken
Easiest way to settle dispute

Question 16

What Negotiations take place?

Answer 16

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

Question 17

What is Mediation?

Answer 17

Independent third party meets with parties to attempt to get them to reach a settlement

Question 18

What is a Mediators role?

Answer 18

They dont make suggestions but they facilitate parties to make decisions for themselves

Question 19

An example of how mediation could be used?

Answer 19

A mini-trial held between parties and neutral mediator

Question 20

When is mediation usually used?

Answer 20

In family disputes

Question 21

What are mediators usually trained in?

Answer 21

Counselling skills

Question 22

What does the Family Law Act 1996 attempt to do for mediation?

Answer 22

Encourages divorcing couples to use mediation instead of the courts

Question 23

Who is mediation popular with?

Answer 23

Businesses as it helps to preserve commercial relationships

Local councils to helo solve neighbour disputes

Question 24

What is Conciliation?

Answer 24

Similar to mediation but the conciliator plays a more active role in trying to resolve the dispute

Question 25

What is a Conciliator?

Answer 25

A neutral third party actively tries to get the parties to reach a settlement by offering suggestions

Question 26

How does a conciliator conciliate?

Answer 26

Meets with the orties separately then goes between the two parties suggesting solutions

Question 27

What does a conciliator offer?

Answer 27

A non-binding opinion on how they should settle the dispute

Question 28

Why is conciliation useful to businesses?

Answer 28

It allows a business to access the strength of their case before they take it to court

Question 29

E: Informal Methods

-Keep parties on good terms

Answer 29

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

Question 30

E:Informal Methods

-Cheaper

Answer 30

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

Question 31

E:Informal Methods

-Decisions can be made in best interest if the parties

Answer 31

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

Question 32

E:Informal Methods
Mediation & Conciliation
-speaking terms

Answer 32

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

Question 33

E:Informal Methods

-If unsuccessful have to go court

Answer 33

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

Question 34

E:Informal Methods

-Skilled Mediator

Answer 34

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