alternative dispute resolution Flashcards
what does Alternative Dispute Resolution refer to?
a range of techniques for resolving disputes without having to go to court
what are advantages of choosing ADR?
-avoid lengthy and expensive litigation
-flexible and cost effective
-bring speedy conclusion to problem
what do the Civil Procedure Rules require?
for both parties to attempt ADR and court should be the last option
what are the four methods of ADR?
negotiation, mediation, conciliation, arbitration
NEGOTIATION:
what does negotiation process consist in?
an informal approach between the parties themselves or their lawyers
what is a strength of negotiation?
quickest and cheapest form of ADR
what does it mean by negotiation being informal?
two individuals resolving dispute face to face
what is an example of negotiation?
consumer dispute when returning goods and getting a refund
how can it be formal?
asking qualified negotiators to act on behalf the parties
what is a weakness of it becoming formal?
can become costly as this is where the pre-trial process begins
when can sometimes negotiations not be reached until?
the day set to go to court
is negotiation legally binding?
agreements are NOT legally binding and have to go to court if nothing happens
what happens if negotiation breaks down?
goes to court but it is advised that another form of ADR is attempted
MEDIATION:
what is involved in mediation?
a third party is involved who is unconnected to parties making it neutral
what is the purpose of mediation?
to reach an agreement
what is the mediator not allowed to do?
to give their opinion on the issue and they are supposed to simply mediate the parties
what is the main duty of a mediator?
- help parties define their positions
- clarify their petitions
-arrange appointments until solving case
what will a mediator firstly hold?
MIAM (mediation information and assessment)
what does the MIAM do?
decides whether mediation will work and assess whether the parties are emotionally ready
what is involved in being a good mediator?
-trained to give assistance in the way of researching good and satisfactory solutions
what is mediation based on?
voluntariness, confidentiality and dialogue
what is mediation used in?
family matters and employment matters (small claims)
who is in control of the process if the mediator cant give opinions?
both the parties are in control
what can both parties do as they’re in control?
withdraw at any time
is mediation legally binding?
no but both parties must agree to comprimise
what can the agreement be included in when a lawyer is used?
the agreement can be included in a court order
what happens if the parties decide to withdraw after unable to comprimise?
either drop the case completely or take the case to court
is legal aid available in mediation?
available only for family mediation
CONCILIATION:
who manages conciliation?
the conciliator
what is different about conciliation to mediation?
the conciliator is entitled to suggest solutions to the case
what are the principles of conciliation?
voluntariness, impartiality, confidentiality, good faith
what is conciliation used in?
employment situations- most famous being ACAS
what are some examples of what conciliation is used in?
-train disputes
- junior doctor dispute against health secretary
is conciliation legally binding?
No
ARBITRATION:
what is arbitration?
private form of ADR
which act governs arbitration?
s.1 Arbitration Act 1996
what is the purpose of arbitration?
obtain the fair resolution of disputes by an impartial tribunal
what does arbitration aim for?
unnecessary delay or expense
are parties free to agree how their dispute should be resolved?
yes, subject only to such safeguards as are unnecessary to public interest
what is arbitration used in?
used in consumer and commercial employment for example ABTA
where do parties submit there claims to?
private arbitrator
what is the process similar to?
to the formal procedure in a court with a judge
what is the decision taken by an arbitrator called?
an “award” and it “binds” the parties, and the award is usually compensation
what are strengths of arbitration?
- easier way of achieving an agreement
- offers flexibility to choose time and place
- cheaper costs
what clause do most commercial contacts have?
Scott v Avery clause
what does the Scott v Avery clause tell us?
how it is known if an arbitration service is available and matter will first go to arbitration
what are the two hearings that take place for arbitration?
paper hearing and full hearing
what happens in a paper hearing?
-both parties submit their claim on paper
- arbitrator will read through documentation
-arbitrator submits decision to parties
which claims involve paper hearings?
less complex claims
what happens in a full hearing?
- both parties submit their documents in advance
- attend a hearing in front of arbitrator
- arbitrator requests for witness statements
what happens if the parties presence is needed to make more flexible?
parties decide on date and time
can you appeal if you don’t agree with decision?
no you cants appeal but you should get advised on what to do next if thought the case wasn’t handled properly
what may you be able to make an appeal on?
a point of law
what can the arbitrator do to one of the party’s?
order one party to pay the other one’s legal costs and arbitration costs
how much is arbitration?
arbitration may cost around £150 -£350
what can the parties do as an advantage?
choose a procedure thats more quicker
how much is arbitration if a solicitor is involved?
£1000- £3000
