Section B-ADR

Question 1

4 Types of ADR

Answer 1

Negotiation
Mediation
Conciliation
Arbitration

Question 2

Negotiation

Answer 2

Parties and their legal advisors seek to reach an agreement

Question 3

Pros cons of negotiation (3,4)

Answer 3

Cheap and quick
No involvement of others-private
Parties are happy-maintains relationship

Involving solicitors can be costly
Party claiming probably settles for smaller sum than expected-more money if went to court
Not binding-party can back out, Ineffective if no agreement reached

Question 4

Mediation

Answer 4

Impartial 3rd party assists in resolving conflict:do not give views, merely facilitate

Question 5

Pros cons of mediation (4,2)

Answer 5

Cost/time
Private
Looser evidence rules
Control-can withdraw at any time

• requires cooperation
• no guarantee of agreement

Question 6

Conciliation

Answer 6

3rd party plays active role, and suggests solutions

Question 7

Pros cons of conciliation (3,2)

Answer 7

+private
+3rd party is an expert
+easy to set up

• can feel pressured into agreement
• difficult to hold agreement

Question 8

Arbitration and where is it contained

Answer 8

Third party given power to decide-arbitration act 1996

Question 9

S15 Arbitration Act 1996

Answer 9

Can choose their arbitrator(s) 1-3, who are experts. If cant choose, court will choose one.

Question 10

Is arbitration formal or informal, and what are the options to appeal? (2)

Answer 10

Formal

Appeal-unprofessionalism of arbitrator or mistake

Question 11

Pros cons arbitration (5,4)

Answer 11

\+can choose own arbitrator
\+flexible and quick-can choose date time etc
\+arbitrator is an expert
\+award is binding
\+appeal available 

DEAL

• delays
• expensive (private arbitrators)
• appeals limited (only unprofessionalism or mistake)
• legal aid unavailable

Question 12

Reasons NOT to go to court (4)

Answer 12

Expensive
Time consuming
Stressful
Public

Question 13

General problems of ADR (5)

Answer 13

May not feel claim is settled fairly
May not consider all evidence
Claimant may settle for less
Issues of fairness-one may still have legal rep
Quite face to face-personal

Question 14

Scott v Avery

Answer 14

A clause in parties contracts-if dispute arises, it will be settled by arbitration

Question 15

2 types of arbitration hearing

Answer 15

Verbal-documents sent, and oral hearing.

Paper-arbitrator makes decisions off documents alone

Question 16

ODR-online facilitator example

Answer 16

Ebay-encourages negotiation first, if unsuccessful, eBay sort it out whose decision is binding

Question 17

Pros Cons of ODR (3,2)

Answer 17

+can be done from home
+usually free
+no need for lawyers

• only certain for some disputes
• if not accepted, court still needed