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Flashcards in Alternative Dispute Resolution Deck (27)
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1

What is alternative dispute resolution?

Used in civil law cases. A term used for resolving a legal dispute that is not through a court or tribunal.

2

What does part 1.4 The Civil Procedure Rules 1998 do?

Places a duty on civil courts to encourage parties to use ADR prior to court proceedings if appropriate.

3

What are the features of ADR?

Confidential( held in private and not reported)

Flexible

Conducted by subject specialists

Solution focused

Parties are active participants

Focused on the future


4

Why is ADR used?

They do not want to go to court or because they have chosen or contracted to use ADR
If they need to maintain a relationship- then a mutually agreed solution may be better.
Confidentiality may be beneficial
Cheaper and quicker

5

What is negotiation?

Non binding
Informal means of resolving dispute
Discussions take place for a mutual agreement to be agreed
Can be negotiated between the parties or their representatives.
Does not involve a third party.

6

When will negotiation be used?

Used before being brought to a court
May be first ADR
Used to maintain relationships like employment and commercial situations
No winner/ loser
Used when there is no legal remedy available - i.e. With family/ neighbours.
Needs to be equally balanced.

7

What are the disadvantages of negotiation?

No official determination
No precedent as it is confidential
May not resolve the issue

8

What is mediation?

An independent 3rd party helps the parties to communicate with each other to achieve a mutually agreed settlement.
Bound by confidentiality
Identify a mutually agreeable solution to the issue- compromise.
The mediator must be acceptable to both parties.( do not need to be professional)
Neutral venue for negotiating
Not legally binding

9

When might mediation be used?

Through choice
To maintain relationships
No easy available legal remedy
Family/ community/ neighbour
Health issues/ business/ commercial / environmental / discrimination/ employment/ financial/

10

When will the law require mediation should be used?

The Children Families Act 2014, requires mediation to be considered before family law applications can be madd.

11

What are the advantages of mediation?

Everyone is a winner- no losers - allows relationship to continue
Cheaper and quicker
Prevents backlog of court cases
Highlights the extent of disputed issues.

12

What the disadvantages of mediation?

No outright winner
Can be more expensive if you use mediation before court
Reduced court cases means reduced options to set precedent.

13

What is conciliation?

Similar to mediation.
Has a third party( conciliator) but more active by providing advice, suggestions to the parties
Confidential
Voluntary- all parties must agree to participate
Non binding- but can draw up a contract at the end of what is agreed which if breached the other party can use.

14

When is conciliation used?

Family
Employment
Commercial law

E.g. Conciliation between employers and trade unions to prevent strike action

15

Advantages of conciliation?

Used early, particularly useful in disputes that are personal.eg employment or discrimination
Mutually agree a solution by allowing to share their views and feelings
Less expensive than court
Quicker
Helps understanding of both sides

16

What is arbitration?

Voluntary
Use an independent person/ body to settle dispute
The decision is made by arbitrator not parties.
More adversarial and fact finding based on the evidence provided
The decision is binding. No further proceedings such as court.

17

Is arbitration regulated by statute?

Yes, The Arbitration Act 1996.

18

When might arbitration be used?

Commercial contracts
Construction
Sport

19

What is the case that relates to contract clauses which specify that arbitration may be used?

Scott v Avery [1856] 5 HLC 811
Known as a Scott v Avery clause,
If a contract has a Scott v Avery clause then the Arbitration Act 1996 states that the court should not deal with it, but should go to arbitration.

20

Who was the famous athlete in the example of arbitration and sports?

Oscar pistorious
The case was whether the use of a passive prosthetic limb would give an amputee an advantage over non disable athletes.

21

What are the Advantages / disadvantages of arbitration?

Advantages
Independent and impartial third party
Speed
Cost
Binding
Parties have choice of arbitrator and process
Flexibility and privacy

Disadvantages
Official determination cannot be reopened - except for appeal on point of law
No set precedent as private
Potential power imbalance
Lack of transparency - decisions are not publicised

22

What is adjudication?

Independent 3rd party makes interim binding determination which lasts until a final determination by either arbitration or litigation.

23

When might adjudication be used?

Construction
Housing Grants, Construction and Regeneration Act 1996 s108- suggests construction disputes can be referred to adjudication.

24

What are the advantages and disadvantages of adjudication?

Advantages
Quick
Binding until final determination is made
Prevents parties from taking action that could escalate situation.
Disadvantages
Only interim decision
Still relies on other forms to make final decision
Parties may feel disadvantaged between adjudication and final determination.

25

Other forms of adr?

Expert determination- third party will be expert on issue- decision is binding.
Specialist like IT systems

Neutral/expert evaluation-

Med- arb

Ombudsmen- publish learning points from cases( precedent can be set)

26

Why is the case Burchell v Bullard and others[2005] important?

Burchell suggested mediation but Bullard refused as he felt his case was watertight. In this case they did not need to mediate but most show a reasonable belief that it was watertight.

Reasons to be considered regarding whether a refusal to mediate was reasonable- the nature of dispute
The merits and costs of the case
The prospect of success

If a party unreasonable refused the case may go against them but the costs are also awarded against them.

27

What are the key features of ADR that could also be seen as a disadvantage as a well as an advantage?

Confidential( no precedent set)
Parties can have a say in the rules/ timetable and location against the potential of a power balance.
Cheaper than Courts but courts do not get to rule on important issues
Parties can enjoy a relationship-
Flexibility
Free up court space and time( but talented individuals leaving judiciary)