alternative dispute resolution

Question 1

what does Alternative Dispute Resolution refer to?

Answer 1

a range of techniques for resolving disputes without having to go to court

Question 2

what are advantages of choosing ADR?

Answer 2

-avoid lengthy and expensive litigation
-flexible and cost effective
-bring speedy conclusion to problem

Question 3

what do the Civil Procedure Rules require?

Answer 3

for both parties to attempt ADR and court should be the last option

Question 4

what are the four methods of ADR?

Answer 4

negotiation, mediation, conciliation, arbitration

Question 5

NEGOTIATION:

Question 6

what does negotiation process consist in?

Answer 6

an informal approach between the parties themselves or their lawyers

Question 7

what is a strength of negotiation?

Answer 7

quickest and cheapest form of ADR

Question 8

what does it mean by negotiation being informal?

Answer 8

two individuals resolving dispute face to face

Question 9

what is an example of negotiation?

Answer 9

consumer dispute when returning goods and getting a refund

Question 10

how can it be formal?

Answer 10

asking qualified negotiators to act on behalf the parties

Question 11

what is a weakness of it becoming formal?

Answer 11

can become costly as this is where the pre-trial process begins

Question 12

when can sometimes negotiations not be reached until?

Answer 12

the day set to go to court

Question 13

is negotiation legally binding?

Answer 13

agreements are NOT legally binding and have to go to court if nothing happens

Question 14

what happens if negotiation breaks down?

Answer 14

goes to court but it is advised that another form of ADR is attempted

Question 15

MEDIATION:

Question 16

what is involved in mediation?

Answer 16

a third party is involved who is unconnected to parties making it neutral

Question 17

what is the purpose of mediation?

Answer 17

to reach an agreement

Question 18

what is the mediator not allowed to do?

Answer 18

to give their opinion on the issue and they are supposed to simply mediate the parties

Question 19

what is the main duty of a mediator?

Answer 19

• help parties define their positions
• clarify their petitions
  -arrange appointments until solving case

Question 20

what will a mediator firstly hold?

Answer 20

MIAM (mediation information and assessment)

Question 21

what does the MIAM do?

Answer 21

decides whether mediation will work and assess whether the parties are emotionally ready

Question 22

what is involved in being a good mediator?

Answer 22

-trained to give assistance in the way of researching good and satisfactory solutions

Question 23

what is mediation based on?

Answer 23

voluntariness, confidentiality and dialogue

Question 24

what is mediation used in?

Answer 24

family matters and employment matters (small claims)

Question 25

who is in control of the process if the mediator cant give opinions?

Answer 25

both the parties are in control

Question 26

what can both parties do as they're in control?

Answer 26

withdraw at any time

Question 27

is mediation legally binding?

Answer 27

no but both parties must agree to comprimise

Question 28

what can the agreement be included in when a lawyer is used?

Answer 28

the agreement can be included in a court order

Question 29

what happens if the parties decide to withdraw after unable to comprimise?

Answer 29

either drop the case completely or take the case to court

Question 30

is legal aid available in mediation?

Answer 30

available only for family mediation

Question 31

CONCILIATION:

Question 32

who manages conciliation?

Answer 32

the conciliator

Question 33

what is different about conciliation to mediation?

Answer 33

the conciliator is entitled to suggest solutions to the case

Question 34

what are the principles of conciliation?

Answer 34

voluntariness, impartiality, confidentiality, good faith

Question 35

what is conciliation used in?

Answer 35

employment situations- most famous being ACAS

Question 36

what are some examples of what conciliation is used in?

Answer 36

-train disputes - junior doctor dispute against health secretary

Question 37

is conciliation legally binding?

Answer 37

No

Question 38

ARBITRATION:

Question 39

what is arbitration?

Answer 39

private form of ADR

Question 40

which act governs arbitration?

Answer 40

s.1 Arbitration Act 1996

Question 41

what is the purpose of arbitration?

Answer 41

obtain the fair resolution of disputes by an impartial tribunal

Question 42

what does arbitration aim for?

Answer 42

unnecessary delay or expense

Question 43

are parties free to agree how their dispute should be resolved?

Answer 43

yes, subject only to such safeguards as are unnecessary to public interest

Question 44

what is arbitration used in?

Answer 44

used in consumer and commercial employment for example ABTA

Question 45

where do parties submit there claims to?

Answer 45

private arbitrator

Question 46

what is the process similar to?

Answer 46

to the formal procedure in a court with a judge

Question 47

what is the decision taken by an arbitrator called?

Answer 47

an "award" and it "binds" the parties, and the award is usually compensation

Question 48

what are strengths of arbitration?

Answer 48

- easier way of achieving an agreement - offers flexibility to choose time and place - cheaper costs

Question 49

what clause do most commercial contacts have?

Answer 49

Scott v Avery clause

Question 50

what does the Scott v Avery clause tell us?

Answer 50

how it is known if an arbitration service is available and matter will first go to arbitration

Question 51

what are the two hearings that take place for arbitration?

Answer 51

paper hearing and full hearing

Question 52

what happens in a paper hearing?

Answer 52

-both parties submit their claim on paper - arbitrator will read through documentation -arbitrator submits decision to parties

Question 53

which claims involve paper hearings?

Answer 53

less complex claims

Question 54

what happens in a full hearing?

Answer 54

- both parties submit their documents in advance - attend a hearing in front of arbitrator - arbitrator requests for witness statements

Question 55

what happens if the parties presence is needed to make more flexible?

Answer 55

parties decide on date and time

Question 56

can you appeal if you don't agree with decision?

Answer 56

no you cants appeal but you should get advised on what to do next if thought the case wasn't handled properly

Question 57

what may you be able to make an appeal on?

Answer 57

a point of law

Question 58

what can the arbitrator do to one of the party's?

Answer 58

order one party to pay the other one's legal costs and arbitration costs

Question 59

how much is arbitration?

Answer 59

arbitration may cost around £150 -£350

Question 60

what can the parties do as an advantage?

Answer 60

choose a procedure thats more quicker

Question 61

how much is arbitration if a solicitor is involved?

Answer 61

£1000- £3000