Chapter 2 Flashcards
Question: What are the most common alternative dispute resolution (ADR) methods?
The most common ADR methods are negotiation, mediation, conciliation, facilitation, neutral evaluation, advisory arbitration, and arbitration.
Question: Which of the following ADR methods involve a neutral third party assisting the parties in finding an amicable solution?
A) Negotiation
B) Mediation
C) Conciliation
D) Both B and C
Answer: D) Both B and C
Question: What is the primary difference between negotiation and facilitation?
Answer: Negotiation is a conversation between the parties involved in a dispute without third-party assistance, while facilitation involves a neutral third party guiding the negotiation process.
Question: True or False: A facilitator takes an active role in decision-making during a dispute resolution process.
Answer: False. A facilitator guides the negotiation process but does not make decisions.
Question: Fill in the blank:
Negotiation is considered the ______ step to resolving a dispute.
Answer: first
Question: In conciliation and mediation, the role of the third party is to: A) Impose a binding decision
B) Help the parties understand their interests and emotions
C) Take sides in the dispute
D) Dismiss the dispute if no agreement is reached
Answer: B) Help the parties understand their interests and emotions
Question: How does conciliation differ from mediation?
Answer: A mediator is more of an observer who lets the parties reach a consensus on their own, while a conciliator plays a more active role by proposing solutions.
Question: According to the Uniform Rules of Court, what is the purpose of mediation?
Answer: Mediation is a voluntary process where an impartial and independent person assists the parties in resolving a dispute, identifying issues, exploring areas of compromise, generating options, or clarifying priorities.
Question: Which South African law defines mediation and outlines its process?
A) The Commission for Conciliation, Mediation, and Arbitration Act
B) The Rules Board for Courts of Law Act 107 of 1985
C) The Arbitration Act 1965
D) The Alternative Dispute Resolution Act
Answer: B) The Rules Board for Courts of Law Act 107 of 1985
Question: Fill in the blank:
Conciliation is not defined in legislation, but the ______ describes it as a process where a commissioner meets with the parties and explores ways to settle the dispute by agreement.
Answer: Commission for Conciliation, Mediation, and Arbitration (CCMA)
Question: True or False: In both mediation and conciliation, the third party imposes a legally binding decision on the parties.
Answer: False. The parties reach their own agreement, and the third party does not impose a binding decision.
Question: Which of the following best describes facilitation?
A) A legal process in which a judge determines the outcome of a dispute
B) A process where a third party helps guide the negotiation process without imposing solutions
C) A mandatory process where a third party enforces a resolution
D) A process where one party must accept the terms dictated by the other
Answer: B) A process where a third party helps guide the negotiation process without imposing solutions
Question: Fill in the blank:
Prior to mediation, the parties conclude a ______ that sets out the terms of the agreement.
Answer: mediation agreement
Question: True or False: Mediation is always mandatory in dispute resolution.
Answer: False. Mediation is a voluntary process entered into by agreement between the parties.
Question: According to the Rules Board for Courts of Law Act 107 of 1985, what is one of the functions of a mediator?A) To impose a final ruling
B) To dismiss one party’s claims
C) To clarify priorities and explore areas of compromise
D) To act as a legal representative for one party
Answer: C) To clarify priorities and explore areas of compromise
What is the main purpose of neutral evaluation and advisory arbitration?
a) To impose a legally binding decision
b) To provide clarity on the likely outcome of a dispute
c) To replace court proceedings entirely
d) To force parties into a settlement
Answer: b) To provide clarity on the likely outcome of a dispute
Which of the following best describes the role of the neutral evaluator?
a) Acts as a judge and imposes a final decision
b) Guides parties to reach a mutual agreement
c) Assesses evidence and provides an opinion on the likely outcome
d) Represents one party in the dispute
Answer: c) Assesses evidence and provides an opinion on the likely outcome
Which statement is TRUE about neutral evaluation and advisory arbitration?
a) The evaluator’s opinion is legally binding
b) The process is highly formal and follows strict legal procedures
c) The evaluator assesses the strengths and weaknesses of each party’s case
d) It is the same as arbitration, with a final award being enforced
Answer: c) The evaluator assesses the strengths and weaknesses of each party’s case
What is a major difference between arbitration and other ADR processes?
a) Arbitration is less formal than negotiation and mediation
b) Arbitration results in a final and binding award
c) Arbitration requires a judge’s approval before it begins
d) Arbitration is always voluntary and non-binding
Answer: b) Arbitration results in a final and binding award
Under what condition can arbitration take place?
a) If one party insists on it
b) Only if a prior arbitration clause exists
c) If both parties agree to it
d) Only in the case of labour disputes
Answer: c) If both parties agree to it
Which of the following is TRUE about arbitration under the Arbitration Act 1965?
a) It applies only to commercial disputes
b) The arbitration award is final and cannot be appealed
c) The arbitrator must be a judge from the High Court
d) Arbitration must always follow court procedures
Answer: b) The arbitration award is final and cannot be appealed
Answer: b) The arbitration award is final and cannot be appealed
How does arbitration differ from neutral evaluation?
a) Arbitration is always voluntary, while neutral evaluation is compulsory
b) Neutral evaluation provides an opinion, while arbitration results in a binding decision
c) Arbitration is less formal than neutral evaluation
d) Neutral evaluation follows strict legal procedures, while arbitration does not
Answer: b) Neutral evaluation provides an opinion, while arbitration results in a binding decision
In neutral evaluation and advisory arbitration, a neutral third party provides an evaluation of the dispute and indicates the likely __________ if the matter proceeded to court.
Answer: outcome
Although the evaluator’s opinion is not __________, it helps parties understand the strengths and weaknesses of their case.
Answer: binding
Neutral evaluation is an informal process where an expert assesses the substantive elements of a dispute, available __________, and the merits of claims.
Answer: evidence
The purpose of neutral evaluation is to help parties understand their best and worst alternatives to a __________ settlement.
Answer: negotiated
Arbitration can only take place if both parties have agreed to it, either through an arbitration clause in a contract or a separate __________ agreement.
Answer: submission
Unlike other ADR methods, arbitration results in a __________ award that is legally enforceable.
Answer: binding
The arbitrator acts as a __________ who hears both sides’ arguments, evaluates the evidence, and reaches a final decision.
Answer: judge or referee
In terms of the Arbitration Act 1965, an arbitration award is __________ and cannot be appealed.
Answer: final
Arbitration forms part of ADR because it resolves disputes outside of the __________ system.
Answer: court
In contrast to other ADR methods, where parties retain control over the final decision, arbitration gives decision-making power to the __________.
Answer: arbitrator
