Types of ADR Flashcards
What is Negotiation?
Negotiation is when disputing parties will try to reach a compromise agreement to end their dispute.
What else about Negotiation?
They can be very informal, flexible with the date time and place and are voluntary. If the negotiation is just between the 2 parties themselves, there can be no cost.
How does Negotiation work?
There are no set rules as to how it should take place. As long as both parties agree, it can be done however they want. It could take the form of just the 2 parties simply discussing their problem any way and anywhere they want. This can be free.
It could require a timetable and a date by which an agreement must be reached and legal representation can be used although it is highly discouraged.
Unless written down, the agreement is not legally binding.
When is Negotiation used?
- disputes between neighbours over anti-social behaviour
- disputes between customers and traders over cost/quality of work
What is Mediation?
Mediation involves a neutral 3rd party (a qualified mediator) working with both parties to aid a restoration.
What else about Mediation?
It is informal, flexible with date, time and place and it is voluntary most of the time. The cost varies on the size of the claim and duration of sessions. If the disputes are £5000 or less, it will cost £50 + VAT per person for a 1 hour session,
How does Mediation work?
There are strict rules to go through mediation as the mediator’s role to encourage communication and mustn’t offer their opinion and must remain impartial.
The mediator may speak to the parties independently but the aim is to get them to speak face-to-face. Legal representation can be used although it is discouraged.
When is Mediation used?
- in family law cases, anyone wanting to go to court would need to attend a MIAM meeting (except in cases involving domestic abuse) under the Children and Families Act 2014.
- some NHS trusts offer mediation as prat of their complaints process
What is Conciliation?
Conciliation involves a neutral 3rd party taking an active role in helping disputing parties reach an agreement. ACAS is an organisation which specialises in providing this services.
What else about Conciliation?
It is a semi-formal, flexible [with date/time/place] and mostly voluntary event. It is also not too expensive, depending the size of the claim and duration of the process.
How does Conciliation work?
The conciliator is permitted to take a more active role than the mediator. They are allowed to offer suggestions and advice on what kind of deal can be made.
Like in mediation, the conciliator cannot force a decision, it must be the two parties who ultimately reach their own agreement. If the agreement is written down, it can be legally binding,
When is Conciliation used?
- Unfair dismissal cases in Employment Law must go through conciliation before going to an employment tribunal
- Issues with car rentals
What is Arbitration?
Arbitration is a process in which a 3rd party acts as a judge and reaches a decision based on submissions from both parties. The rules are set out under the Arbitration Act 1996.
What else about Arbitration?
It is a formal, mostly voluntary and flexible [to an extent with date and time]. The process isn’t exactly cheap but is still cheaper than going to court, it is more if legal rep is used.
How does Arbitration work?
Under s15 AA 1996, the parties can choose their own arbitrator, who will usually be an industrial expert in the area of dispute.
Arbitration can be done by paper, called ‘Paper Arbitration’, where the 3rd party makes a decision based on written submissions from the parties.
The arbitrator will arrange a hearing and hear cases put forward by the parties, witnesses are rarely needed. The decision made is called a reward and is legally binding on both parties.
An appeal can only be made if there was a serious irregularity, under s68, or an issue on a point of law, under s69.
