Chapter 6- Alternative Methods of dispute resolution Flashcards
What is ADR
These are alternatives methods used instead of going straight to court to deal with disputes
Give the different types of ADR
Negotiation
Conciliation
Mediation
Arbitration
What takes place in Negotiating
This is when 2 parties decide to talk and settle the dispute themselves. It could be either phone or face to face.
What are 3 strengths of Negotiating
Cheaper
quickest ADR
private
What happens if Negotiating does not resolve
They usually bring in the advice of solicitors
Give one weakness of Negotiating
These cases can sometimes drag for a long time and the longer the negotiating the higher the cost
What is conciliation
This involves having a neutral individual (The conciliator) Who is able to listen to both parties needs and interests to reach a compromise solution
Advantages of conciliation
-Privacy
-Not strictly legal
-Can allow companies to work together in the future
-Avoids the adversarial conflict
A weakness of conciliation
- At times this leaves cases not completely resolved, making them drag.
- A conciliator may force a resolution
- It is not always binding.
What is Mediation
This involves a neutral trained mediator who aims to get a compromised solution.
What is the role of the mediator
To consult both parties and observe how much common good there is between them.
There are 2 forms of Mediation
formalised settlement conference
mediation services
what are mediation services and give an example
These are several commercial mediation services
-West Kent mediation.- For neighbours
Strengths of Mediation
-Is not strictly legal
-Avoids the adversarial conflict
- allows both parties to work together in the future
-can narrow down the issues so if taken to court, it won’t take too long.
weaknesses of mediation
-not biding
-can sometimes not lead to a settlement
-one party may not be involved in the process.
what is the main difference between Mediation and conciliation
In conciliation, the neutral party is more in control and orders what should be done by either party however in mediation the parties are in control.
What is arbitration and mention the Act
Arbitration Act 1996
This involves the Arbitration act and is where Both parties fully submit their case to the judgement of another person other than a judge
When can an agreement to arbitrate occur
-this can happen any time
- usually in the original contract the case of Scott V Avery is present which means if any dispute arises, arbitration will take place.
What happens when both parties cannot agree on the amount of arbitrators that should be present
Then the Act will decide for them for up to one arbitrator present solely
What happens in an arbitration hearing
*3
-Parties will submit a paper arbitration where it will include all their issues and what they plan on resolving
-If necessary, witness can be involved. If they are then the Act shall allow similar court proceeding ensuring the presence of witnesses
-The time, place and date are all decided by the parties
What is an award
this is the final decision made by arbitration
What happens when the award is challenged
This is if there are several irregularities or a point of law has been touched on then may be taken to court.
Give 3 strengths to arbitration
-Flexibility
-Informal hearings
-an expert in the fields can be present rather than explaining all technicalities to the judge
-cheaper than court
-is private from the public
-the award is normally final
- quicker dispute resolution
Give 3 weaknesses of arbitration
-Arbitrators can be expensive
-Equality may not be present
-an unexpected legal point may appear and this cant be touched by a non- lawyer arbitrator
-formal hearings are expensive
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