ADR

Question 1

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

Answer 1

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

Question 2

What Act encourages the use of ADR?

Answer 2

Civil Procedure Rules 1998

Question 3

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

Answer 3

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)

Question 4

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

Answer 4

Has grown

Increasingly seen as compulsory rather than alternative

Question 5

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

Answer 5

= 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

Question 6

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

Answer 6

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

Question 7

Give an example of ADR

commonly used in employment disputes or when individual claims unfair dismissal

Answer 7

Advisory Conciliation Arbitration Service (ACAS)

Question 8

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

Answer 8

With employment disputes

OR when individual claims unfair dismissal

Question 9

What are the 4 main forms of ADR?

Answer 9

1. Negotiation
2. Mediation
3. Conciliation
4. Arbitration

Question 10

What happens in negotiation?

Answer 10

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

@ most basic = returning faulty goods to a shop

Question 11

What are parties encouraged to do in mediation?

How is this done?

Answer 11

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

Question 12

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

Answer 12

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

Question 13

When is mediation commonly used?

Answer 13

Family disputes - where Rship needs to be maintained

Question 14

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

Answer 14

Companies - used to negotiating business contracts

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

Question 15

Give an example of mediation?

Answer 15

Formalised Settlement Conferences

Question 16

Describe formalised settlement conferences

Answer 16

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

Question 17

What are the 5 advantages of mediation?

Answer 17

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

Question 18

What are the 3 disadvantages of mediation?

Answer 18

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

Question 19

Why is Hazel Glen critical of mediation? (2)

Answer 19

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

Question 20

What method of ADR is conciliation similar to?

Answer 20

Similar to mediation

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

Question 21

What ar the advantages of conciliation?

Answer 21

ACAS adopts prevention rather than cure approach to dispute resolution

Other advantages = similar to mediation

Question 22

What is a disadvantage of conciliation?

Answer 22

Heavily relies on skills of conciliator

Other disadvantages = similar to mediation

Question 23

What Act are private arbitrations governed by?

Answer 23

Arbitration Act 1996

Question 24

What is the decision made in arbitration called?

Answer 24

An ‘award’

= binding + enforceable by cts

Question 25

Who is the arbitrator?

Answer 25

Someone other than a judge | Parties let this independent arbitrator to make the decision of the case

Question 26

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

Answer 26

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

Question 27

What is a Scott v Avery clause?

Answer 27

Used in many commercial contracts | Parties agree that in the event of a dispute will be solved by arbitration

Question 28

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

Answer 28

Parties = free to choose a number of arbitrators | If can't agree, 1 will be appointed?

Question 29

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

Answer 29

Only 1 will be appointed

Question 30

Who decides the details of the procedure in arbitration?

Answer 30

Details of procedure = left to parties (date, time, place) Manny different forms of parties e.g. paper hearing

Question 31

What is a paper hearing? (arbitration)

Answer 31

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

Question 32

What are the advantages of arbitration? (7)

Answer 32

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

Question 33

What are the disadvantages of arbitration? (6)

Answer 33

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 5. Process = not always quick (Alison Halford)

Question 34

Describe Alison Halford issue with arbitration

Answer 34

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

Question 35

What does the Institute of arbitrators allow parties to do?

Answer 35

Parties have discretion as to choice of arbitrators | - can decide if matter = best resolved by technical expert/ lawyer/ professional arbitrator