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NLS - Professional Ethics > ALTERNATIVE DISPUTE RESOLUTION > Flashcards

ALTERNATIVE DISPUTE RESOLUTION Flashcards

1
Q

Advantages of Litigation

A
  1. Decision reached are final and binding
  2. Judgment is enforceable
  3. Option of appeal
  4. Often the only redress in criminal matters
  5. Only option for interpretation of statute
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2
Q

Disadvantages of Litigation

A
  1. Time wasting
  2. Expensive
  3. Too strict and formal
  4. No privacy
  5. Dominated by lawyers and legal technicalities
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3
Q

Advantages of ADR

A
  1. Cheaper
  2. Faster
  3. Private
  4. More open/frank with each other
  5. Flexible
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4
Q

What are the 4 types of mediation?

A
  1. Arbitration
  2. Conciliation
  3. Mediation
  4. Negotiation
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5
Q

What is mediation?

A

Process where parties appoint a neutral third party, that does not take decisions, to explore how a dispute may be amicably resolved?

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6
Q

Is an agreement reach y parties in a mediation enforceable?

A

Yes, only if:

  1. the terms of settlement are reduced into writing and witnessed
  2. and they are filed in court and made a consent judgement
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7
Q

Advantages of Mediation

A
  1. Mediator helps parties to reach a faster settlement
  2. Usually win-win
  3. Less formal
  4. Privacy
  5. Enforcement is easier
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8
Q

Disadvantages of Mediation

A
  1. Can end in deadlock
  2. Mediators cannot summon witnesses
  3. Privacy not absolute because of mediator
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9
Q

What are the differences between mediation and conciliation?

A
  1. Mediator doesn’t have expert knowledge
  2. Mediation is not statutorily recognised
  3. Mediator only facilitates the process of reaching an agreement
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10
Q

What does ‘without prejudice’ mean when written on a document?

A

Such correspondence is not admissible in court as evidence against the party making such communication
NBA v Fawehinmi, S192 Evidence Act

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11
Q

What is negotiation?

A

Process where disputing parties bargain amongst themselves in a bid to reach an amicable settlement.
There are no third parties but parties can be represented by their counsel.

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12
Q

What must you consider when entering into a negotiation agreement?

A

One must consider Worst Alternative To Negotiation Agreement & Best A.T.N.A.

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13
Q

Advantages of Negotiation?

A
  1. Offers absolute privacy
  2. Faster than litigation
  3. Reflects parties wishes
  4. Cheaper
  5. No 3rd party influence
  6. Preserves professional relationship
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14
Q

Disadvantages of negotiation?

A
  1. Possible deadlock
  2. Agreement can be slow
  3. May not be enforceable
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15
Q

What are the two methods used by negotiators to achieve their objectives?

A
  1. Positional Strategy (Win-Lose)

2. Problem Solving (Win-win)

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16
Q

List 5 negotiation tactics

A
  1. Puffs
  2. Nibble
  3. Threats
  4. Deadline
  5. Flattery
  6. Peicemeal
  7. Take it or leave it
17
Q

What are the stages of negotiation?

A

Opening stage
Bargaining Stage
Closing Stage
Execution Stage

18
Q

What governs arbitration?

A

Arbitration and Conciliation Act

19
Q

What is arbitration?

A

parties submit their dispute to an arbitrator to adjudicate and give a binding decision

20
Q

What is an award?

A

The decision of an arbitral tribunal/panel

21
Q

What does Section 31(1) of ACA say?

A

Arbitral award shall be recognised as binding and shall be enforced in court provided that no party to the agreement requests the court to refuse reocgnition

22
Q

What documents must you attach to an application for consent judgment of an arbitral award?

A
  1. duly authenticated/ CTC of original award

2. Original arbitration agreement or CTC

23
Q

Advantages of Arbitration

A
  1. Binding
  2. Enforceable
  3. Can summon witnesses
  4. Arbitrator(s) usually experts
24
Q

What are the disadvantages of Arbitration?

A
  1. Almost as rigid as litigation
  2. Costly
  3. often win-lose
25
Q

What are the pre-requisites for arbitration?

A
  1. Agreement must be in existence containing an arbitration clause
  2. Arbitration clause must be voluntarily agreed
26
Q

How must an arbitration award be given?

A

It must be in writing

27
Q

What is the sever ability doctrine?

A

Allows for the arbitration clause to be upheld despite certain clauses in the agreement being void.
Arbitration clause is autonomous

28
Q

How do you enforce an award?

A

File a motion on notice supported by an affidavit praying the Court to enforce the award as a judgement of the Court
S31 ACA

29
Q

What is the procedure for challenging an arbitral award?

A

File a motion on notice supported by affidavit exhibiting CTC of the award and the arbitration agreement to the HC within 3 months from the date of the making of the award.
S29 ACA

30
Q

What are the stages of arbitral proceedings?

A
  1. Commencement of proceedings
  2. Preliminary Meetings
  3. Pre hearing review
  4. Hearing
  5. Award
  6. Enforcement
31
Q

What is conciliation?

A

Parties submit their dispute to a Conciliator for an amicable settlement. Governed by ACA

32
Q

Procedure for conciliation proceedings?

A
  1. Conciliator requests a brief written statement describing the dispute from each party
  2. he assists in an independent and impartial manner to reach settlement
  3. after consideration he prepares a draft terms of settlement
  4. If parties accept then formal terms are drawn up and if signed the terms become binding
33
Q

How many conciliators can you have?

A

Where parties appoint only one conciliator, the appointment shall be made jointly, where there are three, they shall each appoint one and appoint the third together
Section 40 ACA

34
Q

What happens if parties don’t agree with the terms of settlement drawn up during conciliation?

A

They may submit the dispute to arbitration or take action in court

NLS - Professional Ethics (3 decks)

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