Alternate dispute resolution Flashcards
(15 cards)
What is alternate dispute resolution?
This is a method that is used to resolve civil disputes outside of the courts. Courts cannot force parties to use ADR, however they are able to sanction parties if they unreasonably refuse to use it.
Reasons for ADR
Firstly, the complexity of the legal procedures can be intimidating to individuals, alongside the added costs of legal action (If you lose the case you will most likely have to pay for the others parties expenses) In addition, resolving in disputes in court most likely will result in the relationship of the parties ending after the legal action is finished.
What are the 4 types of ADR?
arbitration, mediation, conciliation, negotiation
Arbitration
- this is most commonly used in commercial and contractual disputes. This is when the two parties agree to have an independent arbitrator who makes a legal and binding decision on behalf of the two parties
Advantages of: arbitration
privacy, decision can be reinforced by courts, independence of arbitrator so it is unbiased
Disadvantages of: arbitration
no legal funding, so those on legal aid have a disadvantage
Mediation
This is when the two parties have a dispute and are encouraged to settle or find a solution to the issue with the help of a third party (THE MEDITATOR) that acts as a ‘go between’ and its role is to try facilitate an agreement between the parties without having any clear biases towards a party.
Advantages of: mediation
private, quick, cost effective, relationship between parties can eb preserved
Disadvantages of: mediation
no guarantee that there will be an agreement amongst the parties , then it will lead to court action, which results in the legal fees that are required. can lead to no agreement
Conciliation
In Conciliation, the third party plays an more active role in trying to find an agreement amongst the parties and will push them to find one. They do this by pushing to find the issues amongst the parties and providing solutions rather than just trying to maintain peace and not intervening as much as seen in meditation.
Advantages of: conciliation
COST AND TIME EFFICIENT, RELATIONSHIP WILL MOST LIKELY BE MAINTAINED AND PRIVATE
Disadvantages of: conciliation
it heavily relies on the skills of independent party as they take up a more active role within the negotiations, also there is still the chance of legal action happening.
Negotiation
this is when the two parties attempt to negotiate amongst themselves (can involve solicitors) can be completed through letters, phone calls and other forms of communication. The complexity of the case is usually the factor that determines if a solicitor is used.
Advantages of: negotiation
completely private, quick resolution and usually maintains relationships and lastly it the most informal type of ADR
Disadvantages of: negotiation
The use of solicitors can cause an uneven playing field as firstly no legal funding is available which makes it so that if a party does bring in a solicitor they have the clear advantage. Offers are usually exchanged and an agreement is usually not found until the day of court which results in a waste of time and money (if you have a solicitor)
