ADR/tribunals

Question 1

why would people use negotiation and the procedure (5)

Answer 1

Two parties resolve dispute together
get a solution without using the courts
face to face or in writing
can involve solicitors
carry on negotiating throughout the trial

Question 2

what are 4 advantages of negotiation

Answer 2

NOT LEGALLY BINDING.
INFORMAL conducted without lawyers
LOW COST/no cost
No skills needed

Question 3

what are 3 disadvantages of negotiation

Answer 3

One party not prepared to negotiate/wants to go to court
NOT LEGALLY BINDING
no resolution

Question 4

what is mediation? (5)

Answer 4

3rd party mediator acts as a messenger
Acts as a go-between, don’t have to meet.
MUST REMAIN NEUTRAL no influence
selected from CDR (trained)
deal with CONTRACT+FAMILY LAW

Question 5

what are the advantages for mediation? 4

Answer 5

NOT LEGALLY BINDING
avoids aggressiveness of court
cheaper than a court case (pay for M)
neutral and trained

Question 6

what are the disadvantages for mediation? 3

Answer 6

not legally binding
relies on parties cooperation
relying off of someone

Question 7

What type of disputes does arbitration deal with?

Answer 7

Commercial, mainly contract cases/ high profile sporting cases - Suarez - contract cases - Kabab v Kout food group (point of law)

Question 8

What Act governs arbitration?

Answer 8

Arbitration Act 1996

Question 9

Where do you get an arbitrator from?

Answer 9

Institute of arbitrators

Question 10

What is a Scott v Avery clause

Answer 10

Clause in contract that in the event of a dispute parties will go to arbitration

Question 11

Why is arbitration more formal and different to all the other methods?

Answer 11

The outcome is binding.

Question 12

4 advantages of arbitration

Answer 12

1) parties have discretion as to choice of arbitrator, venue, time.
2) rarely any publicity
3) Award is binding
4) arbitrator is an expert in the field

Question 13

4 disadvantages of arbitration

Answer 13

1) No public funding available.
2) appeals are restricted
3) Parties may feel that they don’t get their day in court.
if legal point arises not always legal profession to assist.

Question 14

What Act is involved in mediation for family cases?

Answer 14

Family Law Act 1996 / Child and Families Act 2014

Question 15

What type of cases does conciliation deal with?

Answer 15

Commonly used in industrial disputes / workplace

Question 16

What is the role of the third party in conciliation?

Answer 16

Third party plays an active role.

Question 17

Where can you get a conciliator from?

Answer 17

ACAS

Question 18

Example of conciliation

Answer 18

Myers v Nottingham city council - And ACAS has had increased use due to covid.

Question 19

3 Advantages of conciliation

Answer 19

1) It is cheaper than court.
2) It is private and confidential.
3) It identifies and clarifies the main dispute.

Question 20

2 disadvantages of conciliation

Answer 20

1) Heavily relies on skills of conciliator.
2) Dispute may end up in court anyway, resulting in more costs.

Question 21

Tribunals

Answer 21

Specialist Courts established after the setting up of the welfare state to give people the opportunity to enforce their rights.

Question 22

Tribunals are overseen by

Answer 22

HMCTs

Question 23

3 different types

Answer 23

Administrative, Domestic and Employment

Question 24

Administrative tribunals

Answer 24

Deal with disputes between individuals and state.

Question 25

Domestic tribunals

Answer 25

These are internal tribunals e.g law society and medical council.

Question 26

Employment tribunal

Answer 26

Biggest use of tribunals- disputes between employers and employees

Question 27

Who does a tribunal consist of?

Answer 27

Judge (chairperson), one representative for each side.

Question 28

What Act made tribunals how they are today?

Answer 28

Tribunals, Courts and Enforcement Act 2007

Question 29

5 Advantages -

Answer 29

1, Cost 2, Speed 3, informality 4, expertise 4, Independence

Question 30

4 Disadvantages

Answer 30

1, Lack of funding 2, delay 3, Intimidated parties 4, Lack of precedent.

Question 31

what is the role of a mediator?
5

Answer 31

The role of a mediator (mediation) is a form of alternative dispute resolution where the dispute can be
settled ‘out of court’.
* A mediator is neutral between the two parties to a dispute.
* The mediator moves between the parties to find a compromise to their dispute.
* A mediator will seek to understand the parties’ positions in order to find common ground.
* A mediator can convey offers between the parties.

Question 32

what happens during a tribunal?

Answer 32

Witnesses give evidence, examined​

Legally trained chair person ​

2 lay persons present ​

Employment tribunals now charge a fee ​

Parties encouraged to represent themselves rather than legal rep​

Both sides put forward their case