Arbitration + A03 11/13

Question 1

What is Negotiation?

Answer 1

Negotiate directly between themselves e.g. neighbours, can employ a solicitor but introduces cost element

Question 2

What is mediation?

Answer 2

Neutral 3rd party acts as message carrier/facilitator, don’t offer opinion, either can withdraw anytime, not binding, e.g. Family Mediators Association

Question 3

What are Mediation Services?

Answer 3

Companies which solve disputes

Question 4

What is Conciliation?

Answer 4

Takes more active role and suggests grounds for a compromise, can withdraw anytime, not binding, e.g. ACAS

Question 5

How does Arbitration happen?

Answer 5

Parties submit claims to private arbitrator/panel who decide on a settlement
E.g. package holiday contracts, construction contracts

Question 6

What is a Scott v Avery Clause?

Answer 6

A clause in contract to use Arbitration instead of court, commonly used in commercial contracts

Question 7

What does Arbitration Act 1996 say?

Answer 7

When there’s an agreement to arbitrate, the courts should refuse the case, arbitrators are trained and specialise in that field

Question 8

How knowledgeable are Arbitrators?

Answer 8

They are trained and specialise in that field

Question 9

What do parties need to agree on?

Answer 9

Date, time, place for arbitration and if via paper statements or oral representations with witnesses

Question 10

What is the decision called?

Answer 10

An ‘award’ and is legally binding

Question 11

How to challenge a decision?

Answer 11

Under the Arbitration Act for serious irregularity, incorrect proceedings or point of law

Question 12

All of Arbitration A01

Answer 12

1. Parties submit claims to private arbitrator/panel who decide on a settlement
2. E.g. package holiday contracts, construction contracts
3. Used in commercial disputes when clause in contract to use Arbitration instead of court (Scott v Avery Clause)
4. Arbitration Act 1996 when agreement to arbitrate courts should refuse case
5. Arbitrators are trained and specialise in that field
6. Parties must agree on date, time, place for arbitration and if via paper statements or oral representations with witnesses
7. Decision known as ‘award’ and is legally binding
8. Decision can be challenged under Arbitration Act for serious irregularity, incorrect proceedings or point of law

Question 13

Adv of Arbitration (knowledge)

Answer 13

Arbitrators are experts in their field, don’t need expert witnesses, avoids expense and delay

Question 14

Adv of Arbitration (flexibility)

Answer 14

Time, place, location of hearing chosen to suit parties, flexible, convenient

Question 15

Adv of Arbitration (confidentiality)

Answer 15

Private, prevents bad publicity, maintains business relationship

Question 16

Adv of Arbitration (cost)

Answer 16

Cheaper and quicker than court, award is final so gives closure to parties

Question 17

Limitations of Arbitration

Answer 17

❌ Legal funding not available, not at equal footing, 1 might not afford legal representation, intimidating, reduces chances of winning
❌ Point of law may need resolving that arbitrator cannot, delay case or jeopardise it
❌ Still expensive, overall costs may still be as high as court, especially with face-2-face and witnesses