Alternative Dispute Resolution*

Question 1

Define Negotiation

Answer 1

The most inexpensive form of ADR, it involves both parties resolving the dispute outside of court, with little assistance.

Question 2

Define Mediation

Answer 2

An independent third party will facilitate the parties in coming to a resolution.

Question 3

What is the success rate of mediation?

Answer 3

Successful in 90% of cases - according to the Centre for Effective Resolution.

Question 4

What does the Family Law Act 1996 encourage?

Answer 4

Encourages divorcing couples to use mediation.

Question 5

Define Conciliation

Answer 5

A conciliator will play an active role in coming to a conclusion.

Question 6

Why would a large company use conciliation?

Answer 6

To assess the strength of their case before taking action in court.

Question 7

Define an employment tribunal.

Answer 7

Composed of a panel of three - synonymous to a court setting.

Question 8

Which Act reformed employment tribunals by making them simpler?

Answer 8

Tribunals, Courts and Enforcement Act 2007.

Question 9

Give some advantages of mediation/negotiation/conciliation.

Answer 9

• Far cheaper than litigation as there is no need for legal representation - e.g. companies save roughly £1 billion annually by using ADR - an attractive alternative for companies to avoid the lengthy and costly litigious procedure.
• ADR is highly successful alternative to the courts - mediation is successful in 90% of all cases - however if it doesn’t work, the parties will have to use the courts anyway - also the decision is not legally enforceable.
• ADR leaves both parties on good terms as they cooperate to come to a decision - e.g. divorce cases utilise mediation to avoid the adversarial nature of court - therefore benefiting the well-being of both parties in certain cases.
• Mediation is far quicker than going to court due to the less formal procedure - sessions will typically last 2 hours - far less than the 30 week wait in the ‘fast track’ of the County Court.

Question 10

Give some disadvantages of mediation/negotiation/conciliation.

Answer 10

• If they fail to work, the parties will be forced to litigate - arbitration may have been a waste of time -
• No legal aid available as their is no requirement to use representation - though if one party chooses to, the other should too to ensure they aren’t defeated - ADR is used by the equivalent ‘small claims’ - means these are the kind of cases that need legal aid the most.
• No appeal routes available - tough the decision is not enforceable so it shouldn’t matter.

Question 11

Give two advantages of tribunals.

Answer 11

• The panels may be experts in their field - bringing practical knowledge rather than legal knowledge which may not always be necessary.
• May not require a legal professional - therefore may be cheaper - a date and time will be more easily settled upon.

Question 12

Give two disadvantages of tribunals.

Answer 12

• May be an inequality of bargaining power as one party may be able to afford a lawyer whereas the other won’t - no legal aid - no guaranteed lawyer.
• Very limited and complex appeal routes - upper tribunals or to the High Court - the latter would be lengthy and costly - litigation guarantees less complex appeal routes.