ADR Flashcards
What does ADR stand for ?
“Alternative dispute resolution”
What is meant by ADR ?
The ways in which parties settle their civil case without going to court.
What are the four types of ADR ?
-Negotiation
-Mediation
-Conciliation
-Arbitration
What is meant by negotiation ?
This is where two people can try and resolve their dispute by negotiating directly between themselves.
If a solution isn’t met through negotiation, how may the parties solve the issue ?
Parties can employ a Solicitor, however once lawyers are involved, there will be a cost element.
What is meant by mediation ?
Mediation is where a neutral third party helps parties reach a compromise by acting as a facilitator.
How does mediation work ?
The mediator does not offer an opinion unless asked and both parties have control
over the process and can withdraw at any time. Although the solution reached is not legally binding and a dispute cannot be imposed on them.
What are mediation services ?
Mediation Services are companies which are used to solve disputes
What is an example of a mediation service ?
The “Centre for Dispute Resolutions” has many large companies as members as well as all of the large London Law firms.
What must be stated about the effectivity of the “Centre of Dispute Resolutions” ?
In 2016 it reported it had resolved 10,000 claims over the last 12 months, saving £2.8
billion in time, productivity and legal fees.
What is another example of a mediation service ?
The “West Sussex Mediation Service”, which deals with smaller disputes and offers mediation between neighbours, work place disputes and family disputes
What is the difference between mediation and conciliation ?
Although conciliation operates in a similar way to mediation, the conciliator takes a more active role and has the power to suggest grounds for compromise or a settlement.
Is conciliation legally binding ?
The decision is not binding, and a resolution cannot be imposed upon the parties, they must agree to it.
What is arbitration ?
The parties involved agree voluntarily to submit their claims to a private arbitrator, or a panel of arbitrators who decide on a settlement like a judge would.
What are some examples, where arbitration is used ?
Package holiday contracts, construction contracts, and the “Court of Arbitration for Sport”.
What is the significance of a “Scott v Avery” clause ?
Often in commercial contracts, a “Scott v Avery clause” is written in it, which states that if a dispute occurs the parties will use arbitration rather than taking the case to
court. that if a dispute occurs the parties will use arbitration rather than taking the case to court, parties can have 1-3 arbitrators and the contract will either name a specific arbitrator or provide a method for selecting one, but a court can appoint one if the parties are unable.
When does the “Arbitration Act” (1996) apply to civil claims ?
When there is an agreement to arbitrate (Scott v Avery Clause), the act applies, stating that courts should refuse to deal with these cases so that arbitration can take place instead. There are trained arbitrators for major disputes, and in most cases the arbitrator will be someone with expertise in the particular field.
Who decides which type of arbitration takes place ?
The parties themselves.
What are the different ways arbitration can be conducted ?
Arbitration can either take place using paper statements (without the parties present), or by making oral representations, wherein witnesses can be called upon, to give evidence and operating like a formal hearing.
How is the time and place of the arbitration decided ?
The date, time and place of the arbitration must also be agreed between the parties themselves as well as the arbitrator. This makes the hearing more flexible as it can take place at a time when it is most
convenient to the parties.
What is the significance of the final decision made by the arbitrator ?
The decision made by the arbitrator is known as the “award”, and it is legally binding upon the parties. Even if, the arbitrator’s decision is final, it could be challenged under the “Arbitration Act” for “serious irregularity”, if the proceedings were conducted incorrectly, or on a point of law.
