Alternative Dispute Resolution Flashcards
Define ADR.
Alternative dispute resolution (ADR) is the term used to describe ways of resolving a dispute without having to go to court.
There are many different forms of ADR, but the one thing they have in common is that they all have the potential to resolve a dispute without any court involvement.
What is the purpose of the WOOLF Report?
- it is to encourage ADR
What does the 1999 Civil Procedure Rules state?
- it allows judges to ‘stay’ court proceedings
- this is to stop the court proceedings temporarily so that the parties can try mediation or other ADR methods.
What did the Access to Justice Act 1999 consist of?
- legal aid
-New ways of assessing whether a litigant should be funded
-likely to encourage ADR
-deciding whether they should be funded is whether any method other than taking a case to court is more suitable.
Define negotiation.
- Anyone who has a dispute with another person can always try to resolve it by negotiating directly with them
What are the advantages of negotiation
- private
-the quickest and cheapest method of settling a dispute - solicitors can also negotiate on behalf of the clients.
What are the disadvantages of negotiation
- once lawyers are involved there will be a cost element - the longer the mediation goes on the higher the costs will be.
- Often a number of cases drag on for years only to end in an agreed settlement literally ‘ at the door of the court’ on the morning the trial is due to start.
Define mediation.
- when a neutral mediator helps the parties to reach a compromise solution
- a mediator consults with each party and see how much common ground there is between them .
- he will explore the position with each party, looking at their needs and carrying offers to and from.
- a mediator will not normally tell the parties their own views.
- but can be asked for their own opinion which then becomes an evaluation exercise.
What is an advantage of mediation.
-it can take different forms and the parties will choose their exact method they want.
- Parties are in control - they make decisions
Give an example of mediation services.
- West Kent Independent Mediation Services which is run by volunteers who will not take sides of judgements. It arranges a meeting between the two parties - parties are in control.
What does the Centre for Dispute Resolution 1991 consist of?
- it includes many important companies as members - Big London law firms.
What are some more advantages of mediation?
- saves a great deal of money. Mediator case is 1,500 whereas a court case can be 100,000
- the decision does not need to be strictly based on the law.
- more likely to be based on common sense and compromise.
- helps narrow down matters so even if a case goes to court it won’t be a long trial
- allows companies to do business with each other in the future
What are the disadvantages of mediation?
- no guarantee that the matter will be resolved , and will have to court to court anyway
- Additional cost and delay - but evidence does suggest that a high number of cases will be resolved.
-amounts paid in mediated services are often lower than the amount settled in court - mediation requires a skilled mediator - can become bullying tactic for weaker side if mediation is inexperienced.
State some extra facts about mediation.
- not legally binding
- no winner / loser result of court proceedings - with mediation everyone wins
- if the mediation session does not resolve the dispute, the parties are more lily to settle the case without going to court than in non mediated cases.
What is conciliation?
- neutral third party helps to resolve disputes but the conciliator plays an active role
- suggest ground for comprise and the possible bases for settlements.
What are the advantages of conciliation?
- saves a great deal of money. Mediator case is 1,500 whereas a court case can be 100,000
- the decision does not need to be strictly based on the law.
- more likely to be based on common sense and compromise.
- helps narrow down matters so even if a case goes to court it won’t be a long trial
- allows companies to do business with each other in the future
What is disadvantage of conciliation?
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