Civil courts and other forms of dispute resolution - ADR (not done eval)

Question 1

Explain how disputes can be resolved out of court (8 marks)

Question 2

What is litigation

Answer 2

Going to court to resolve a dispute

Question 3

What is ADR

Answer 3

Alternative methods are referred to as ADR - or Alternative Dispute Resolution. This includes any method of resolving a dispute without resorting to using the courts.

Question 4

What is negotiation

Answer 4

• Negotiation is where the two parties resolve their dispute without referring to third party assistance or submitting to alternative adjudication.
• 2 parties discussing the issue and attempting to formulate a solution. It is a mutual compromise.
  it is the most basic form of ADR and they solve directly, privately and possibly face to face. If parties cannot reach an agreement, they may decide to instruct solicitors to negotiate a settlement on their behalf’s.
• Negotiation may be informal such as two individuals resolving a dispute face to face or formal such as asking qualified negotiators (sometimes solicitors) to act on behalf of the parties (eg negotiating a trade deal or company acquisitions and mergers)

Question 5

What is mediation

Answer 5

Mediation uses a neutral 3rd party (the mediator) who facilitates discussion between the parties. The mediator will consult each party to try to establish common ground. The mediator does not give their own opinions (unless asked) leaving the parties in control.
- The decision is NOT legally binding.
- They play a passive role and cannot impose their own opinion and cannot enforce a certain outcome.
- The 3rd party or mediator may communicate the key issues between the parties. It is used because the parties are in control and settle the terms of the process.
- can also withdraw at any time, in addition can set the time or place for mediation

Question 6

Businesses also use mediation and will often use specialist mediation providers, name an example of a mediation provider

Answer 6

An example of a mediation provider for businesses is the Centre for Dispute resolution in London which provides a specialist service to businesses.

Question 7

In addition solicitors provide mediation services to who

Answer 7

Particularly for families or conflicts between neighbours.

Question 8

What is another illustration of mediation services

Answer 8

A final illustration of mediation services is the use of formalised settlement conferences which endeavour to get the parties to agree on key issues.

Question 9

Commercial mediation;
Due to an increase in the demand by companies for mediation a number of new mediation services have been established, name an example (mentioned earlier)

Answer 9

The Centre for Dispute Resolution
Founded in 1991 and many large business organisations are using this service. The International Dispute Resolution Europe Ltd has predicted that lawyers will adopt mediation before using the courts in most commercial cases. Companies see mediation as a quick, cheap, simple way to resolve disputes with the obvious advantage of preserving goodwill. Businesses have indicated that several thousand pounds have been saved by using the centre as an alternative to the courts.

Question 10

What is MIAM

Answer 10

This is mediation in divorce - in most cases involving a dispute over finance or children the parties will be required to attend a Mediation Information and Assessment Meeting (MIAM)

Question 11

What act stipulates that in most cases involving a dispute over finance or children the parties will be required to attend a MIAM

Answer 11

Under section 10 Child and Families Act 2014

Question 12

What is mediation in divorce cases traditionally used for

Answer 12

Mediation in divorce cases has traditionally been used in an attempt to get amicable settlements between couples. Couples are encouraged and advised too use mediation to resolve issues such as financial settlements and residential orders for children.

Question 13

Name the mediation service which offers mediation in family disputes

Answer 13

The Family Mediation Services.

Question 14

When is mediation compulsory

Answer 14

Mediation is part of the legal process for divorcing couples

Question 15

What is a further example

Answer 15

Relate

Question 16

What is the Formalised Settlement Conference

Answer 16

‘the mini-trial’ - The mini trial is now being used by many businesses to resolve disputes (originally set up in USA). The mini trial offers the parties a more business like method of resolving dispute involving compromise and good sense.

Question 17

Who does the formalised settlement conference consist of and what is their role

Answer 17

It consists of a panel of 3 people - an executive from both disputing parties and a neutral 3rd party. Submission must be made and and considered by the panel. The neutral advisor will attempt to evaluate the position of each party and encourage an agreement. Even if no agreement is reached each party will understand the strengths and weaknesses of the case.

Question 18

What is conciliation

Answer 18

This involves a third party taking a more ACTIVE role in suggesting ways to come to a settlement.
‘‘Prevention rather than cure’’ approach
The conciliator will organise the conciliation at a time and place convenient to all parties
The parties attend with legal advisors (if any)
The conciliator will make suggestions, such as areas for compromise and a possible basis for settlement.
The decision is not legally binding

Question 19

How is conciliation different to mediation

Answer 19

Mediation is passive - they do not impose their own opinion in which they cannot force any outcome. Whereas conciliation is ACTIVE where the conciliator gives their own opinion and suggestions and suggests how the problems may be resolved.

Question 20

What do ACAS do

Answer 20

The Advisory Conciliation and Arbitration Service (ACAS) offers a range of ADR services in the field of disputes between employers and employees.
ACAS is fully independent and impartial (despite being government funded). ACAS conciliation is also used to attempt to prevent industrial action (strikes) for example - Junior doctors, southern rail and the London tube driver strikes. The conciliation officer advises the parties of the strength of their position.

Question 21

What is Arbitration

Answer 21

This is a private process by which an independent person, ‘arbitrator’, resolves a dispute by making a legally binding decision.
It is the most formal method of ADR
‘Adjudicative’ disputes are resolved through a neutral third party who has the authority to bind the parties in terms of the decision.

Question 22

What act governs arbitration and what does this set out

Answer 22

Arbitration is governed by the Arbitration Act 1996. This act sets out rules within an agreement.

Question 23

Many contracts include a clause, name this clause and explain what it does

Answer 23

Many contracts include a Scott v Avery clause to agree pre-contractually to arbitrate in the event of a dispute

Question 24

What does section 15 of the Arbitration Act 1996 state

Answer 24

States that the parties are free to agree on the number of arbitrators, so that a panel of two or three may be used or there may be a sole arbitrator. Most agreements will either name an arbitrator or provide a method of choosing one.It is often provided that the president of the appropriate trade union will appoint the arbitrator.

Question 25

What does the institute of Arbitrators provide

Answer 25

They provide trained arbitrators for major disputes. In many cases, the arbitrator will be someone who has expertise in the particular field involved in the dispute, but if the dispute involves a point of law the parties may decide to appoint a lawyer.

Question 26

Explain the different ways arbitration cases can be conducted

Answer 26

There can be a hearing, but many cases are conducted using ‘paper arbitration’, when the parties submit their arguments and evidence in writing to the arbitration as opposed to making oral submissions at a hearing.
Alternatively, there can be an oral hearing. Both parties will attend a hearing at which they make oral submissions to be arbitrator to support their case.

Question 27

What is the decision of the arbitrator known as and is it binding

Answer 27

An ‘award’. It is binding on the parties and can even be enforced through the courts if necessary

Question 28

Is the decision final

Answer 28

The decision is usually final, though it can be challenged (appeled) on the grounds of serios irregularity in the proceedings on a point of law.

Question 29

EVALUATION: - ADVANTAGES (overall)
Who encourages ADR and what does part 1 contain

Answer 29

• The use of ADR is encouraged by the Civil Procedure Rules, where part 1 contains an overriding objective that judges have to deal with cases justly and fairly.

Question 30

ADR attempts to involve the client in the process of resolving disputes, why is this an advantage

Answer 30

ADR attempts to involve the client in the process of resolving disputes, the focus is upon reaching an agreement, rather than the adversarial approach (conflict or opposition), and each case is decided on its merits without reference to other cases.

Question 31

Due to the speed of resolution, ADR is significantly more affordable than a court proceeding, provide evidence or an example of this

Answer 31

For example, the average cost per client for mediation in divorce cases is approx 535 compared to 2,813 which is the average cost if the parties went to court.