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LAW: SECTION A > alternative dispute resolution > Flashcards

alternative dispute resolution Flashcards

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1
Q

what does Alternative Dispute Resolution refer to?

A

a range of techniques for resolving disputes without having to go to court

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2
Q

what are advantages of choosing ADR?

A

-avoid lengthy and expensive litigation
-flexible and cost effective
-bring speedy conclusion to problem

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3
Q

what do the Civil Procedure Rules require?

A

for both parties to attempt ADR and court should be the last option

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4
Q

what are the four methods of ADR?

A

negotiation, mediation, conciliation, arbitration

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5
Q

NEGOTIATION:

A
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6
Q

what does negotiation process consist in?

A

an informal approach between the parties themselves or their lawyers

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7
Q

what is a strength of negotiation?

A

quickest and cheapest form of ADR

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8
Q

what does it mean by negotiation being informal?

A

two individuals resolving dispute face to face

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9
Q

what is an example of negotiation?

A

consumer dispute when returning goods and getting a refund

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10
Q

how can it be formal?

A

asking qualified negotiators to act on behalf the parties

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11
Q

what is a weakness of it becoming formal?

A

can become costly as this is where the pre-trial process begins

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12
Q

when can sometimes negotiations not be reached until?

A

the day set to go to court

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13
Q

is negotiation legally binding?

A

agreements are NOT legally binding and have to go to court if nothing happens

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14
Q

what happens if negotiation breaks down?

A

goes to court but it is advised that another form of ADR is attempted

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15
Q

MEDIATION:

A
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16
Q

what is involved in mediation?

A

a third party is involved who is unconnected to parties making it neutral

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17
Q

what is the purpose of mediation?

A

to reach an agreement

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18
Q

what is the mediator not allowed to do?

A

to give their opinion on the issue and they are supposed to simply mediate the parties

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19
Q

what is the main duty of a mediator?

A
  • help parties define their positions
  • clarify their petitions
    -arrange appointments until solving case
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20
Q

what will a mediator firstly hold?

A

MIAM (mediation information and assessment)

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21
Q

what does the MIAM do?

A

decides whether mediation will work and assess whether the parties are emotionally ready

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22
Q

what is involved in being a good mediator?

A

-trained to give assistance in the way of researching good and satisfactory solutions

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23
Q

what is mediation based on?

A

voluntariness, confidentiality and dialogue

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24
Q

what is mediation used in?

A

family matters and employment matters (small claims)

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25
Q

who is in control of the process if the mediator cant give opinions?

A

both the parties are in control

26
Q

what can both parties do as they’re in control?

A

withdraw at any time

27
Q

is mediation legally binding?

A

no but both parties must agree to comprimise

28
Q

what can the agreement be included in when a lawyer is used?

A

the agreement can be included in a court order

29
Q

what happens if the parties decide to withdraw after unable to comprimise?

A

either drop the case completely or take the case to court

30
Q

is legal aid available in mediation?

A

available only for family mediation

31
Q

CONCILIATION:

A
32
Q

who manages conciliation?

A

the conciliator

33
Q

what is different about conciliation to mediation?

A

the conciliator is entitled to suggest solutions to the case

34
Q

what are the principles of conciliation?

A

voluntariness, impartiality, confidentiality, good faith

35
Q

what is conciliation used in?

A

employment situations- most famous being ACAS

36
Q

what are some examples of what conciliation is used in?

A

-train disputes
- junior doctor dispute against health secretary

37
Q

is conciliation legally binding?

A

No

38
Q

ARBITRATION:

A
39
Q

what is arbitration?

A

private form of ADR

40
Q

which act governs arbitration?

A

s.1 Arbitration Act 1996

41
Q

what is the purpose of arbitration?

A

obtain the fair resolution of disputes by an impartial tribunal

42
Q

what does arbitration aim for?

A

unnecessary delay or expense

43
Q

are parties free to agree how their dispute should be resolved?

A

yes, subject only to such safeguards as are unnecessary to public interest

44
Q

what is arbitration used in?

A

used in consumer and commercial employment for example ABTA

45
Q

where do parties submit there claims to?

A

private arbitrator

46
Q

what is the process similar to?

A

to the formal procedure in a court with a judge

47
Q

what is the decision taken by an arbitrator called?

A

an “award” and it “binds” the parties, and the award is usually compensation

48
Q

what are strengths of arbitration?

A
  • easier way of achieving an agreement
  • offers flexibility to choose time and place
  • cheaper costs
49
Q

what clause do most commercial contacts have?

A

Scott v Avery clause

50
Q

what does the Scott v Avery clause tell us?

A

how it is known if an arbitration service is available and matter will first go to arbitration

51
Q

what are the two hearings that take place for arbitration?

A

paper hearing and full hearing

52
Q

what happens in a paper hearing?

A

-both parties submit their claim on paper
- arbitrator will read through documentation
-arbitrator submits decision to parties

53
Q

which claims involve paper hearings?

A

less complex claims

54
Q

what happens in a full hearing?

A
  • both parties submit their documents in advance
  • attend a hearing in front of arbitrator
  • arbitrator requests for witness statements
55
Q

what happens if the parties presence is needed to make more flexible?

A

parties decide on date and time

56
Q

can you appeal if you don’t agree with decision?

A

no you cants appeal but you should get advised on what to do next if thought the case wasn’t handled properly

57
Q

what may you be able to make an appeal on?

A

a point of law

58
Q

what can the arbitrator do to one of the party’s?

A

order one party to pay the other one’s legal costs and arbitration costs

59
Q

how much is arbitration?

A

arbitration may cost around £150 -£350

60
Q

what can the parties do as an advantage?

A

choose a procedure thats more quicker

61
Q

how much is arbitration if a solicitor is involved?

A

£1000- £3000

LAW: SECTION A (9 decks)

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