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AS Law LA1 > ADR > Flashcards

ADR Flashcards

1
Q

Why isn’t court action always the most appropriate solution? (5)

A
  1. Complexity of legal procedures
  2. Delay in resolutions
  3. Cost of Ct action
  4. Intimidating atmosphere of Ct
  5. May lead to deterioration of Rship between parties
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2
Q

What Act encourages the use of ADR?

A

Civil Procedure Rules 1998

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3
Q

What does Part 1 of the Civil Procedure Rules 1998 say about the use of ADR?

A

Part of judges role in active case management is to encourage the use of ADR where appropriate

CPR allows judges to stop + refer parties to ADR
(especially family + employment)

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4
Q

What has happened to the use of ADR in the past 50 years?

A

Has grown

Increasingly seen as compulsory rather than alternative

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5
Q

What has happened before when parties have refused to cooperate with ADR?

A

= cases where parties have been ‘punished’ with adverse cost orders

BUT in Halsey v Milton Keynes General NHS Trust 2004 the CA said: can’t force parties into ADR; goes against the ECHR Art 6 - right to a fair trial

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6
Q

What was said by the CA in the case of Halsey v Milton Keynes General NHS Trust 2004?

A

Parties can’t be forced into ADR + therefore can’t be ‘punished’ if they don’t cooperate
Due to fact it goes against Art 6 ECHR - tight to a fair trial

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7
Q

Give an example of ADR

commonly used in employment disputes or when individual claims unfair dismissal

A

Advisory Conciliation Arbitration Service (ACAS)

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8
Q

When is the Advisory Conciliation Arbitration Service (ACAS) mostly used?

A

With employment disputes

OR when individual claims unfair dismissal

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9
Q

What are the 4 main forms of ADR?

A
  1. Negotiation
  2. Mediation
  3. Conciliation
  4. Arbitration
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10
Q

What happens in negotiation?

A

Resolves disputes by discussing, bargaining + reaching a conclusion
Solicitors can negotiate on your behalf (but ££ more)

@ most basic = returning faulty goods to a shop

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11
Q

What are parties encouraged to do in mediation?

How is this done?

A

Reach their own settlements
Neutral 3rd part acts as a ‘go between’
Role = consult both parties + IDs common ground

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12
Q

What is the role of the neutral 3rd party in mediation?

A

Acts as a ‘go between’
Role = consult both parties + IDs common ground
Doesn’t express their own views
Acts asa ‘facillitator’ so agreement can be reached

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13
Q

When is mediation commonly used?

A

Family disputes - where Rship needs to be maintained

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14
Q

Who is most likely to benefit from the use of mediation?

A

Companies - used to negotiating business contracts

BUT mediation = only suitable if = some hope that the parties will cooperate

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15
Q

Give an example of mediation?

A

Formalised Settlement Conferences

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16
Q

Describe formalised settlement conferences

A

Involve a mini-trial
Each side presents their case to panel of decision making executives (from each side) + neutral mediator
Once submissions = made, executives + NM evaluates 2 sides, reach decision
If executives don’t agree, NM mediates between them

Even if not resolved, it narrows down the issues

17
Q

What are the 5 advantages of mediation?

A
  1. Good chance maintaining Rships (easier companies do future business, decisions about conduct? not in Ct J.ment)
  2. Non-confrontational (avoids adversarial nature of Ct)
  3. Cost effective (esp. in commercial cases)
  4. Cheaper (each side £ own, Cts looser £ all)
  5. Vol. M can promote early settlements
18
Q

What are the 3 disadvantages of mediation?

A
  1. No guarantee matter = resolved, may end up in Ct anyway (more ££ + delays)
  2. If parties = forced, may be half-hearted about it, less likely to be successful
  3. Hazel Glen: amounts paid in mediation settlements = lower than those awarded by Cts
19
Q

Why is Hazel Glen critical of mediation? (2)

A
  1. Amounts paid in mediation settlements = lower than the agreed in other settlements
  2. Amounts paid in mediation settlements = lower than amounts awarded by the courts
20
Q

What method of ADR is conciliation similar to?

A

Similar to mediation

But 3rd party = more active (suggests grounds for compromise IOT push in direction of settlement)

21
Q

What ar the advantages of conciliation?

A

ACAS adopts prevention rather than cure approach to dispute resolution

Other advantages = similar to mediation

22
Q

What is a disadvantage of conciliation?

A

Heavily relies on skills of conciliator

Other disadvantages = similar to mediation

23
Q

What Act are private arbitrations governed by?

A

Arbitration Act 1996

24
Q

What is the decision made in arbitration called?

A

An ‘award’

= binding + enforceable by cts

25
Q

Who is the arbitrator?

A

Someone other than a judge

Parties let this independent arbitrator to make the decision of the case

26
Q

When can the decision to solve a dispute with arbitration be made?

A

At any time - before, during, after
Most agreements = in writing

Many commercial contracts involve a Scott v Avery clause
- parties agree that in event of a dispute, solve by arbitration

27
Q

What is a Scott v Avery clause?

A

Used in many commercial contracts

Parties agree that in the event of a dispute will be solved by arbitration

28
Q

What does the Arbitration Act 1996 give parties the ability to do in arbitration?

A

Parties = free to choose a number of arbitrators

If can’t agree, 1 will be appointed?

29
Q

What happens if the parties can’t agree on the number of arbitrators to use?

A

Only 1 will be appointed

30
Q

Who decides the details of the procedure in arbitration?

A

Details of procedure = left to parties
(date, time, place)

Manny different forms of parties
e.g. paper hearing

31
Q

What is a paper hearing? (arbitration)

A

Both sides submit cases in writing with relevant documents
Arbitrators make a decision

Sometimes send all files in writing but make oral submissions at hearing

32
Q

What are the advantages of arbitration? (7)

A
  1. Institue of arbitrators - parties have discretion to choice of arbitrator (decide if matter = best resolved by technical expert, lawyer, professional arbitrator)
  2. Hearing procedure = flexible, arrange to suit them
  3. Dealt with in private, no publicity
  4. If technical expert used, saves expenses of calling expert witnesses + explaining technicalities to judges
  5. Disputes = resolved quicker than courts
  6. = cheaper than courts
  7. Award = binding + enforceable by cts
33
Q

What are the disadvantages of arbitration? (6)

A
  1. No legal aid (unequal footings)
  2. IF unexpected legal point arises, not always legal professional in hearing
  3. Professional arbitrators fees = high
  4. ££ is opt for formal hearing (e.g. calling witnesses to give evidence, lawyers)
  5. Chairman isn’t always as impartial as desired
  6. Process = not always quick (Alison Halford)
34
Q

Describe Alison Halford issue with arbitration

A

Alison Halford = senior police officer in Manchester
Brought proceeding of sex discrimination against police authorities
2+ years from date of her original application to conclusion of case

35
Q

What does the Institute of arbitrators allow parties to do?

A

Parties have discretion as to choice of arbitrators

- can decide if matter = best resolved by technical expert/ lawyer/ professional arbitrator

AS Law LA1 (13 decks)

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