ADR / Employment Tribunal Flashcards
(17 cards)
1
Q
Describe
Mediation
Relate
Apart of ADR exam questions
A
- There is a neutral third party called the mediator.
- Mediator facilitates a deciscion bewteen parties.
- Consult each party to try to establish a compromise.
- Mediator won’t give their own opinion.
Example: Relate for couples having problems.
2
Q
Decribe
Arbitration
Arbitration Act 1996, Scott v Avery Clause
Apart of ADR exam questions.
A
- Parties volunatrilty submit to Arbitration. Can be held in person or by letter.
- The arbitrator is a independent third party, who is picked by the parties, who deals with case.
- Outcome is a reward and is legally binding.
Arbitration Act 1996 - Decision can only be appealed in exceptional circumstances
- Decision can be made any time before or at time of dipute to go to Arbitration, through the
Scott v Avery Clause, where if a dispute arises, they have to settle it with Arbitration.
3
Q
Describe
Negotiation
Apart of ADR exam questions.
A
- Two parties resolve dispute together, with no third party, so is quick and cheap.
- Outcome is not legally binding, and it’s not a guarantee to reach a deciscion.
- Informal Negotiation - Two parties meet face to face to solve dispute.
- Formal Negotation - Parties use qualified negotiators to act on behalf to solve disputes.
4
Q
Describe
Concilation
ACAS
Apart of ADR exam questions
A
- Similar to mediation, ad neutral concilator helps party solve dispute.
- Not legally binding.
- Concilator takes active role in discussion, to discuss issues and make suggestions, to party to help reach a deciscion.
Example: ACAS - For industrial disputes.
5
Q
Describe
Employment Tribunals
A
- Can be used for employment matters and disputes between employers and employees.
- Independent and Impartial Tribunal, and make decision based on evidence.
- Legally Binding
- Handles claims like, Unfair Dismissal/Pay Deduction/Treatment, Redundancy or Workplace Discrimination.
- Award compensation and make employer give employee, their old job back, or a different role or a satisfactory reference.
6
Q
Evaluate
Cost, Advantage of ADR
- What is ADR compared to court?
- What don’t parties have to pay the same? And why?
- However in which ADR is this not the case?
A
- Much more cheaper than courts.
- No setup fees, and lawyers are discouraged so they pay less overall keeping costs down.
- Mediation, Conciliation or Arbitration, in these parties can use a lawyer which will hike up costs.
7
Q
Evaluate
Control, Advantages of ADR
- What do ADR allow parties to control?
- What gets controlled? How are agreement made? Compare to courts?
- What can you do at any time in Mediation and Negotiations? What can you also control in Mediation and Arbitration.
A
- Allow to be in control of the case.
- Discussions and overall outcomes, both must agree and accept terms for any outcome to work, unlike courts where the losing party has no say on the agreement.
- Mediation and Negotiation, you can stop at any time. Mediation and Arbitration allows you to pick a Mediator or Arbitrator.
8
Q
Evaluate
Future Relationships, Advantages of ADR
- What does ADR support?
- What are court proceedings? Which require the parties to reach agreement together? What does this allow?
- What is different in Arbitration going against this?
A
- Parties to have positive future relationships.
- Adversarial with a winner or loser, Negotiation, Mediation or Conciliation requires parties to reach an agreement together, which allows for positive future business relationships.
- Winner or loser in Arbitration, Arbitrator makes decision, so lead to resentment as one loses.
9
Q
Evaluate
Speed, Advantage of ADR
- What happens to disputes in ADR over courts?
- What can be used at any point, How long do courts take?
- What in courts increase time and money? Why is ADR favourable?
A
- Disputes resolved quicker than by courts.
- Negotiation can be used at any point, Courts take up to two years, due to delays in cases.
- Case Management, which makes ADR more favourable which saves money.
10
Q
Evaluate
Resolution, Disadvantage of ADR
- What is there no guarantee of?
- Which ones aren’t legally binding? Leads to?
- What do parties now have to do? This adds? what is legally binding? But what is its disadvantage?
A
- A resolution.
- Mediation, Conciliation, Negotiation, not legally binding so parties can just refuse, no guarantee of reaching agreement.
- Means take case to courts which increase cost and time, Arbitration is legally binding but has limited appeals.
11
Q
Evaluate
Settlements, Disadvantage of ADR
- What is less than courts?
- What can ADR cost be? Makes?
- What aren’t legally binding, what are? How does this affect settlement?
A
- Amount paid by the court is less.
- Parties lose money as cost of ADR can be more expensive than the settlement is.
- Mediation, Negotiation and Conciliation, not legally binding so you might not even get the money at all, and Arbitration is only legally binding.
12
Q
Evaluate
Bullying, Disadvantage of ADR
- What can 1 party have?
- What does Mediation and Concilation require? If this is not present what happens?
- Which one is this more likely in?
A
- More power or a lawyer to bully other party into a favourable settlement.
- Mediation and Conciliation, require someone skilled with natural talent, if not present, then one side can bully other side as one side is more stronger.
- More likely to happen in Conciliation as the Conciliator plays an active role.
13
Q
Evaluate
Costs, Disadvantage of ADR
- What can be the case in ADR?
- What can increase cost? How does this increase costs?
- What professionals are more expensive? What is ADR as well that is expensive?
A
- Whilst cheaper it can end up being more expensive.
- Use of lawyers as legal fees, going back and forth as time, more delays and more costs.
- Professional Arbitrators and Mediators are more expensive, ADR is formal so has witnesses and lawyers.
14
Q
Evaluate
More Beneficial as Cheaper, Civil Court v ADR Evaluation
- What costs less?
- What is less if you lose?
A
- Legal representation costs less, as you aren’t incentivised in many cases to get representation and that you should represent yourself.
- No large legal bill if you lose, as the settlement amounts in ADR are smaller than the Courts so you pay for less.
15
Q
Evaluate
A lot Quicker, Civil Court v ADR Evaluation
- What is longer in Courts?
- What does this lead to
A
- Court hearings are much more longer in courts, as a result of case backlogs and various pre-trial matters, making some cases take longer to hear.
- During this a work dispute is ongoing and both parties are still working together, so the wait in Courts would put C in bad position, not case in ADR as much more faster.
16
Q
Evaluate
More informal as self-representation, Civil Court v ADR Evaluation
- What does this make the C?
- This makes the decision? Why?
A
- C more comfortable to present their arguments, as ADR is generally more informal than regular courts.
- Both can reach a decision based on comprises that was worked out based of their one input and not the input of a third party, so in the best interests of all parties.
17
Q
Evaluate
More control in ADR, Civil Court v ADR Evaluation
- What is there not in ADR? This makes both parties have to agree and decide on)
- What about the decision and outcome?
A
- There is no judge set timetable making both parties have to agree on the time, date and evidence to be used, so they have more agency over fitting it into their schedules.
- Have control over the decision as in Negotiation, Mediation and Concilation, don’t have to accept terms, so not forced into a settlement they don’t want.
