Litigation, Mediation, and Arbitration Flashcards
chapter 1
What does ADR stand for?
Alternative Dispute Resolution. It refers to any means of settling disputes outside of the traditional litigation process
Is ADR voluntary?
ADR is generally voluntary unless ordered by the court. However, the court can now lawfully order parties to engage in ADR, provided it does not impair the claimant’s right to a judicial hearing
What is the main purpose of ADR?
The main purpose of ADR is to resolve disputes outside of court, often more quickly and at a lower cost. It also allows for more flexibility and privacy
What are the main types of ADR discussed in the text?
The text focuses primarily on mediation and arbitration. It also mentions negotiation
What is mediation?
Mediation is a form of ADR where an independent third party (the mediator) helps the parties reach their own solution. The mediator cannot impose a solution. It is a voluntary process
What are some advantages of mediation?
Advantages include: cost and speed, flexibility, privacy, the ability to preserve business relationships, and the ability for parties to withdraw
What are some disadvantages of mediation?
Disadvantages include: limited disclosure of documents, lack of public vindication, the ability to withdraw which can be frustrating, and that any agreement must be enforced through the courts
What is arbitration?
Arbitration is a substitute for litigation where a dispute is referred to an independent arbitrator, whose decision is binding on both parties
How can arbitration be initiated?
Arbitration can be initiated through an arbitration clause in a contract, or by the parties agreeing to arbitration after a dispute has arisen
What are some advantages of arbitration?
Advantages include: it can be quicker and less formal than court, confidentiality, decisions made by experts, and a binding decision
What are some disadvantages of arbitration?
Disadvantages include: potentially less in-depth investigation than in court, certain remedies like injunctions are unavailable, and that the decision is binding with limited rights of appeal
What is litigation?
Litigation is the process of taking a case to court. It is generally considered a last resort when other methods of dispute resolution have failed.
What are some key features of civil litigation?
Civil litigation is governed by the Civil Procedure Rules (CPR). It involves a structured process with multiple stages
What are the five stages of litigation?
The five stages of litigation are: pre-commencement of proceedings, commencement of the action, interim matters, trial, and post-trial
What are the consequences of refusing ADR?
Refusing to engage in ADR can lead to cost sanctions and the court can now order parties to engage in ADR
