Law, Practice and Procedure Flashcards
What are the different global law systems?
The Common Law- USA and Most Commonwealth Countries
Civil Law- EU Countries , South America and China
Islamic Law
What are the characteristics of Common Law System?
Approach is adversarial: Parties contest with each other to establish their cases before a tribunal. Lawyers seek a “win” for their client
What are the characteristics of Civil Law?
Based on written laws organised into codes which are continuously updated. The role of the judge is to establish the facts and apply the provisions of the applicable codes
What are the main methods of Alternative Dispute Resolution?
Negotiation Mediation Expert Determination Dispute Boards Adjudication Arbitration
What are the advantages of ADR
More Cooperative than Litigation Less Competitive than Litigation Less Escalation and ill will Can Improve relationships Parties must continue to interact
What are the advantages of Negotiation
Always available
Confidential
It is fast and usually cheaper than alternatives
It allows for preservation of relationships
Range of solutions available is unlimited
Parties have full control of the process and the outcome
What do Mediators do?
Clarify the factual background
Set out the matters in dispute (and common ground between parties)
Help the parties assess and communicate to each other what they need in order to arrive at a settlement that both can accept.
What are the advantages of Mediation?
Flexibility and Speed
Consensus: the parties have a joint objective to settle
Continuity: Mediation suits situations where the parties wish to preserve their relationship
Control: The parties have ultimate control over the process
Confidentiality
What are the disadvantages of Mediation?
The fact that there may not be a successful outcome
The status of the document that are subsequently used in formal proceedings
The potential conflict if the mediator is then asked to become involved in a further ADR process
What is the EU directive on Mediation?
Directive encourages the use of mediation as a cost-effective and quick alternative to litigation
What is Conciliation?
Like Mediation, but more formal
Conciliator is likely to have expert knowledge in the type of dispute they conciliate
What is Evaluative Mediation?
A form of Mediation that assists parties to reach a resolution by pointing out the weakness of their cases and even predicting the outcome if the case goes to court or tribunal.
What are the types of Expert Involvement?
Early Neutral Evaluation Neutral Expert Fact-Finding Mini Trials Private Trials Ombudsman
What are the benefits of Expert Determination?
Confidential Private Process Impartial Process Relatively Inexpensive Flexible Process Unless Parties provide otherwise the experts determination is final and binding Non Judicial and non-adversarial Maintain relationships
What are the negative aspects of Expert Determination?
Parties cannot insist on the expert taking notice of the evidence and the finality precludes a review where there has been unfairness or simple error (safe for negligence)
In what situation might Expert Determination be a useful method of ADR?
Where statutory Adjudication does not apply.
What are the advantages of Adjudication?
Private Party Choices Flexibility of Process Cost Effective Speedy (typically 28 days) Temporarily binding decision
What act requires all construction contracts to have an agreement to adjudicate
Housing, Grants, Construction and Regeneration Act 1996
What is the timescale that adjudication should be completed in?
28 days
What are the different types of Dispute Board
Dispute Avoidance Board
Dispute Review Board
Dispute Adjudication Board
On what type of projects have Dispute Boards been used regularly on and from what year?
Heavy Engineering Projects (tunnels, airports, toll roads)
Since 1975
What is Arbitration?
A consensual method of dispute resolution whereby a third party tribunal makes a final determination.
What are the advantages of Arbitration
- Parties can Choose the Arbitral Tribunal
- Parties can decide on the procedure to be followed
- Parties can bring their own council or representatives
- The decision may be reached with less cost and complexity compared to litigation
- Process is guaranteed to provide a binding determination.
- Confidentiality can be maintained
- Awards are relatively easy to enforce against appeal
- Immunity from Suit for the tribunal
What is Med-Arb?
A hybrid process that gives parties the opportunity to use mediation to reach settlement. If the mediation does not reach an agreement then the mediator converts into the role of an arbitrator and makes a binding decision.s
What is Arb-Med?
A hybrid process where the parties start an arbitration and move into mediation mode for some of the issues which may be resolved by a negotiated settlement.
What is litigation?
The “default” method of resolution if no other method has been nominated in the agreement between parties. Matters are resolved through the courts.
What are the disadvantages of litigation?
Can be time consuming Costly It is public Can adversely affect relationships Parties do not have control of proceedings
What are the advantages of litigation?
Establishing a precedent- to avoid future litigation
Publicity- could pressure an opponent into settlement
Costs- could be lower for the winning party.
What is “natural justice”?
The Bias Rule- A person may not be the judge in his own cause (or everyone is entitled to have their matter determined by an unbiased decision maker)
The Hearing Rule- That every party has the basic right to be heard
The Evidence Rule- that a decision must be based on evidence relevant to the issue.
