Evaluation of types of ADRs

Question 1

What are the ADVANTAGES of NEGOTIATION?

Answer 1

• cost; usually free [face to face]. if legal rep is used there will be a cost but it’s much less than court
• flexibility; parties have a lot of control over organisation. they are not bound by rules [lunchtimes/ weekends]. it can take place any time and there can be any remedies
• non-adversarial; more likely to work as there are often no winners/losers. it’s about compromise which can maintain relationships
• private; preserves relationships as not reported in media

Question 2

What are the DISADVANTAGES of NEGOTIATION?

Answer 2

• not legally binding; when it is not written down, so parties can renege on their agreement. stressful
• imbalance of power; one party my have more money or legal representation when the other does not. no funding for legal aid [going against corporation]
• lack of predictability; cannot predict outcome and no past precedents are used, a danger that the parties may spend a long time negotiating with no outcome
• lack of legal expertise; what they agree upon may not be legally enforceable and it may be interpreted differently

Question 3

What are the ADVANTAGES of MEDIATION?

Answer 3

• cost; if the amount being claimed is less than £5000, mediation will cost £50 + VAT per person per hour (CEDR audit in 2016 said the 10,000 mediations saved £2.8 billion)
• flexibility; the hearing can be tailored to when is suitable to them .the mediator is chosen by the parties and a neutral setting can be chosen
• non-adversarial; no winners/losers so maintains relationships [divorced couples and custody]
• private; preserves reputations and protects intimate details being released

Question 4

What are the DISADVANTAGES of MEDIATION?

Answer 4

• not legally binding; unless its written down so many people go straight to litigation as they see it as pointless [custody, upsetting for kids]
• imbalance of power; one party my have more money or legal representation when the other does not. no funding for legal aid [custody hearings tend to favour mothers]
• lack of predictability; no legal precedents need to be followed, lack of fairness/consistency. hard to get accurate legal advice
• lack of legal expertise; can result in unfair treatment [may not suggest agreement to be written]. some mediators find it hard to remain impartial

Question 5

What are the ADVANTAGES of CONCILIATION?

Answer 5

• cost; often conciliation is offered for free [the Disability rights commission offers it for cases of disability rights/education]
• speed; court hearings can take up to1 year to happen and conciliation is much quicker [ACAS says 66% success rate]. less stressful
• pro-active role; can offer advice/suggestions. usually conciliators are experts and can draw on their own exp
• non-adversarial; no winners/losers so maintains relationships allows flexibility/compromise

Question 6

What are the DISADVANTAGES of CONCILIATION?

Answer 6

• not legally binding; unless written down which means process will be made even longer if one party reneges (unfair dismissal, may not get job back)
• imbalance of power; disadvantaged if up against large entity. conciliator may perceived to be biased to one party
• lack of predictability; fairness is not guaranteed and hard to get accurate legal advice
• lack of expertise; ACAS/CEDR people don’t have to know anything about law. remedies may be unenforceable by law

Question 7

What are the ADVANTAGES of ARBITRATION?

Answer 7

• cost; it is offered free (£100 for using ABTA) and reduces the long-term cost of court
• speed; a Scott v Avery clause means there is no debate over which type of ADR. paper arbitration makes it a lot quicker. no witnesses are usually called (less stressful)
• expertise; arbitrators are often experts in their field (RIBA and ABTA)
• private; protects reputations and the leaking of sensitive information to the public

Question 8

What are the DISADVANTES of ARBITRATION?

Answer 8

• lack of predictability; The Office of Fair Trading offers 20 codes of conduct so there are many variations. info can be forgotten in paper arbitration
• cost; although it is cheaper than court, people in financially difficult situations may find it much harder (£100 for ABTA)
• lack of awareness; many people have never heard of it and just go straight to litigation (only 5% are dealt this way)
• lack of legal expertise; while arbitrators are experts in their field, they are often not experts in the law. may cause an appeal (more stress)