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Z - AS Law - Civil Process > Alternative Dispute Resolution > Flashcards

Alternative Dispute Resolution Flashcards

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1
Q

What does ADR stand for?

A

Alternative dispute resolution

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2
Q

What do the civil procedure rules 1998 allow?

A

For a judge to stop a case and refer the party to ADR (note they cannot be forced to do this, but they can be referred)

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3
Q

What areas is ADR most favoured in?

A

Family

Employment

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4
Q

What is an example of ADR for employment disputes?

A

ACAS

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5
Q

What does ACAS stand for?

A

Advisory, conciliation arbitration service

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6
Q

What is the advisory, conciliation arbitration service used for?

A

Employment disputed e.g unfair dismissal

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7
Q

What do advisory, conciliation arbitration service do?

A

Visit both parties and try to iron out problem to avoid the need to go to a tribunal

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8
Q

What are the features of negotiation?

A

Disputes are resolved by discussing, bargaining and coming to a conclusion with the other party
A solicitor may negotiate on your behalf
Negotiation often continued even when court/tribunal proceedings have started. This reflects the number of out of court settlements

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9
Q

How does mediation resolve disputes?

A

A neutral mediator helps parties to reach a compromise solution

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10
Q

What is the role of the mediator?

A

They act as a middle ground. They consult each party to see how much common ground there is.
They won’t usually provide their own view

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11
Q

When is mediation suitable?

A

It’s only suitable if there’s some hope that the parties will cooperate

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12
Q

Who is most likely to benefit from mediation?

A

Companies

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13
Q

What is a formalised settlement conference?

A

A more formal method of mediation

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14
Q

What is the procedure of a formalised settlement conference?

A

It involves a mini trial where each side presents its case to a panel composed of a decision making executive from each party and a neutral mediator.
Once cases have been presented the executives and a neutral advisor will try to reach an agreement (they will also act as a mediator if they can’t agree)

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15
Q

What is the advantage of a formalised settlement conference?

A

Even if the issue is not resolved it will make court proceedings quicker

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16
Q

What are some of the growing commercial mediation services?

A

Centre for dispute resolution

Online dispute resolution

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17
Q

Who uses the centre for dispute resolution?

A

Many important companies. Nearly all of the big London law firms are members.

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18
Q

What is online dispute resolution?

A

Websites which offer mediation services. It’s becoming increasingly popular.

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19
Q

Briefly, what are the advantages of mediation/conciliation?

A

Decisions are made on a common sense basis
It’s easier for companies to continue business in the future
Decisions may include future agreements
It avoids the adversarial nature
It’s cheaper
Voluntary mediation can promote early settlements
Even if a resolution isn’t reached it will often speed up court/tribunal proceedings

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20
Q

Why is it easier for businesses to continue doing business in the future if they use mediation/conciliation?

A

Because the adversarial nature of the court is avoided and therefore it’s non-confrontational and there’s less tension between the parties.
Parties can also come to agreements about future business which cannot be done in court

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21
Q

Why is mediation/conciliation cheaper?

A

It is cheaper, each party pays its own fees whereas in court the loser usually pays their fees and the winners
It’s particularly cost effective in commercial cases

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22
Q

What are the disadvantages of mediation/conciliation?

A

There’s no guarantee the matter will be resolved and you may end up in court. If this is the case the process has been time consuming and pointless. This has also added additional costs.

23
Q

What did Hazel Genn find in her research?

A

She found that the amounts paid in mediation were a lot lower than amounts awarded by courts
She also felt that mediators controlled mediations and forced parties into a settlement
BUT
Voluntary mediations can promote an early settlement and leads to a situations where grievance is reduced and an acceptable settlement is reached

24
Q

What is conciliation?

A

Similar to mediation but a neutral party helps resolve the dispute

25
Q

What is the main difference between conciliation and mediation?

A

The neutral party will play a more active role

26
Q

What is the role of the neutral party in conciliation?

A

They will suggest grounds for compromise and possible basis for a settlement

27
Q

What does the arbitration act 1996 do?

A

Govern private arbitration

28
Q

What governs private arbitration?

A

The arbitration act 1996

29
Q

What act was made in 1996?

A

The arbitration act

30
Q

When was the arbitration act made?

A

1996

31
Q

What is arbitration?

A

Arbitration is when parties voluntary submit their dispute for judicial determination by someone other than a judge. The decision is binding and can be enforced in court, it’s often in writing

32
Q

What is the procedure of arbitration?

A

The procedure is left almost entirely as the parties discretion e.g time, place, date. Procedure for selecting arbitrator

33
Q

When can the party agree to go to arbitration?

A

At any point i.e before a dispute arises, when the dispute becomes apparent, after the dispute

34
Q

What do many commercial contracts include?

A

A Scott v Avery clause

35
Q

What is the purpose of a Scott v Avery clause?

A

It is in contracts so that if a dispute does arise it will have to be settled by arbitration

36
Q

What does the arbitration act 1996 set out?

A

That parties are free to agree on the number of arbitrators (if they can’t agree one will be assigned)
Parties are free to to agree on the procedure for appointing an arbitrator

37
Q

What are some of the options for an arbitration hearing?

A

There are many, these may include;
A paper hearing
Oral submission

38
Q

What happens in a paper hearing?

A

Both sides out their case in writing and submit this with any relevant documents to the arbitrator. They will then make a decision

39
Q

What is an oral submission?

A

They will orally explain their version of events, witnesses may be called

40
Q

What is an award?

A

The arbitrators decision

41
Q

What is the arbitrators decision called?

A

An award

42
Q

Briefly, what are the advantages of arbitration?

A

Much many of the decisions are at the parties discretion
The matter is dealt with in private, therefore no publicity
Cheaper
Quicker than going to court
It encourages cooperation

43
Q

Who could the arbitrator be?

A

A technical expert, lawyer or professional arbitrator

44
Q

Why is it good the parties get to decide on the type of arbitrator?

A

Because they know who is most suitable for their issue

45
Q

How does arbitration encourage cooperation?

A

Because parties have to decide on a number of things such as who the arbitrator will be, the type of hearing, the time, date and place

46
Q

Why is arbitration cheaper and quicker than going to court?

A

If a technical expert is used it saves the expense of calling expert witnesses and the time that would be used explaining technicalities to the judge

47
Q

Why is arbitration better than a court settlement?

A

It’s in private so there’s no publicity
It’s cheaper because expert witnesses often aren’t used
It’s quicker because time doesn’t have to be spent explaining technicalities to the judge
The procedure is flexible. Parties can chose the running or arbitration and make it work to their schedules
It avoids the adversarial nature of the court room

48
Q

Briefly, what are the disadvantages of arbitration?

A

No legal aid is available
An unexpected legal point may arise which is unsuitable for a non-lawyer arbitrator
Professional arbitrators fees are high
It can be expensive
Delays could be equally as long as a court settlement
Sometimes the arbitrator is not as impartial as desired

49
Q

Why is it a problem that legal aid isn’t available for arbitration?

A

Parties can be on unequal footing, especially when businesses employ a lawyer

50
Q

Why can arbitration be expensive?

A

If parties opt for a formal hearing with witnesses giving evidence and if lawyers are representing each side

51
Q

Why can there be delays with arbitration?

A

If professional arbitrators and lawyers are used in commercial and international arbitration if often drives up delays

52
Q

What’s an example of arbitration being a lengthy process?

A

Alison Halford brought proceedings for sex discrimination against the police authorities and it was more than two years from the date of her original application that a conclusion was reached

53
Q

What happened in the case of Alison Halford?

A

Alison Halford brought proceedings for sex discrimination against the police authorities and it was more than two years from the date of her original application that a conclusion was reached

54
Q

What is Alison Halford relevant too?

A

Delays in arbitration

Z - AS Law - Civil Process (4 decks)

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