Alternative dispute resolution Flashcards

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1
Q

Why do we have ADR and can you name the 4 main types?

A

ADR is a way of resolving disputes between people without going to court.

1) Negotiation
2) Mediation
3) Conciliation
4) Arbitration

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2
Q

ADR - Negotiation - what is it and when it could be used?

A

Negotiation is when parties try and resolve problem amongst themselves.

They will make a ‘settlement’ or written agreement usually involving money.

Sometimes engage solicitors.
An example of when negotiation is used is in family disputes.

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3
Q

Negotiation pros

A

Least formal (less stressful)

Least expensive.

Least time consuming.

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4
Q

Negotiation cons

A

Sometimes not suitable, if parties are angry at each other and don’t want to negotiate.

May still end up in court

Any conclusion reached by this process is not legally binding.
meaning If there is an an agreement is pay a sum of money and the agreement is not met, they may have to go to court.

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5
Q

ADR - Mediation - what is this and when is it used?

A

Mediation is when a neutral / independent 3rd party meets both the parties and try and help them to resolve their dispute.

A Mediator will NOT make suggestions but will instead facilitate parties to make a decision between themselves. ‘What do you think’

Often used in divorce cases.

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6
Q

Mediation Pros

A

Divorce uses mediation often as it is a lot cheaper than courts.

Formal court can be very stressful.

Parties can come to solution courts can’t.

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7
Q

Mediation cons

A

Any conclusion reached by this process is not legally binding.
If there is an an agreement is pay a sum of money and the agreement is not met,
they may have to go to court.

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8
Q

ADR - Conciliation - What is it and when is it used?

A

Conciliation is similar to mediation but plays a more active role.

Conciliation is still neutral but will actively help to come to settlement using suggestions.

Sometimes meet parties separately and go back and forth.

Companies use this process to check how a case might work in court.

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9
Q

Conciliation pros

A

Opportunity to solve issues before they go to court

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10
Q

Conciliation cons

A

Non-binding opinion.
If there is an an agreement is pay a sum of money and the agreement is not met,
they may have to go to court.

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11
Q

4) Arbitration - what is it and when is it used?

A

Arbitration is the most formal type of ADR - It involves an independent 3rd party who makes a decision/award.

All parties must agree to arbitration.

Process popular between companies and trade unions.

Exceptions claims that could go to the small claims courts.

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12
Q

Which clause in a contract requires parties to give up their right to go to court?

A

Scott and Avery Clause - a term in the contract where they give up their right to go to court.

The Arbitration Act 1996 states that court will normally refuse to deal with any issue if the parties have agreed to go to arbitration

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13
Q

Arbitration pros

A

Flexible - Choose the a time that is convenient - unlike court that sets the time.

An Arbitrator could be an expert in the field e.g someone who could explain technology if this was part of the dispute or a lawyer to explain points of law.

BINDING arbitration can make an award. If a party fails to do what is decided this will be enforced by law.

Often resolved much more quickly than court proceedings, so attorney fees are reduced.

Lower costs in preparing for the arbitration than there are in preparing for a jury trial.

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14
Q

Arbitration cons

A

Limited chance to appeal - can be challenged in the King’s Bench Divisional Court where there has been misconduct.

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15
Q

What other forms of ADR are there?

A

Tribunals
Omburdsmen - an official appointed to investigate individuals’ complaints against a company or organization, especially a public authority

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16
Q

ADR Tribunal - What is it and when is it used?

A

Tribunals are specialist courts whose judges and members hear a wide range of cases, such as tax, employment, and immigration and asylum.

17
Q

Tribunal pros

A

The key advantages of tribunals are:

They are specialised, flexible, and accessible.

They are designed to be more informal and user-friendly than traditional courts, and they often use more informal procedures, such as oral hearings or written submissions.

18
Q

Tribunal cons

A

Strict time limits.

Details of your case are made public.

Potential high cost of a tribunal.

Very strict appeals procedures.

A stressful, lengthy process

19
Q

Looking at Alternative dispute resolution as a whole - How would you describe the main pros?

A

Cost-Effectiveness: ADR is often more cost-effective than pursuing litigation through the courts.

Flexibility and Adaptability: ADR methods, including mediation and arbitration, allow parties to tailor the resolution process to their specific needs and preferences.

Preserving Relationships: ADR focuses on open dialogue, negotiation, and finding mutually agreeable solutions.

Expedited Resolutions: ADR methods often lead to quicker dispute resolution compared to court proceedings.

20
Q

Looking at Alternative dispute resolution as a whole - How would you describe the main cons?

A

Lack of enforceability. (not legally binding)

Some ADR does involve cost.

Limited Legal Protections: ADR processes may not provide the same level of legal protections and remedies available through court proceedings.

Not suitable for Complex Disputes.

Can be a Power Imbalance between parties - employer and employee.

21
Q

How might you conclude an exam answer on ADR?

A

Alternative Dispute Resolution methods offer notable advantages. However, it is crucial to recognise the potential limitations of ADR.