Alternative Dispute Resolution Flashcards
1
Q
What is ADR? (2)
A
- Alternative Dispute Resolution
- The means of resolving a dispute without going through court
2
Q
What are the four main types of ADR?
A
- Negotiation
- Mediation
- Conciliation
- Arbitration
3
Q
Explain Negotiation (4)
A
- Involves solving the dispute with the parties directly
- Could involve solicitors that result in a settlement before the court date
- There are “modern” methods of negotiation
- It’s the biggest method of ADR - completely private, easy, and with minimal cost
4
Q
What are the modern methods of negotiation? (2)
A
- DIY
- Online
5
Q
Explain mediation (5)
A
- Involves having a third party act as referee
- Particularly popular in family cases
- There are “modern” methods
- The mediator CANNOT suggest ways to compromise. The parties must make their own decision
- Becoming seen as compulsory after Dunnet v Railtrack
6
Q
What are the modern methods of mediation? (2)
A
- Online
- Mediation centres
7
Q
What happened in Dunnet v Railtrack?
A
- An adverse cost order was given to parties who refused to mediate
8
Q
What was introduced in 2011?
A
- Mediation Information Meetings (MIAMS)
9
Q
What are mediation information meetings? What do they involve? (2)
A
- Compulsory initial meetings for all divorced couples
- Costs around £140 and will assess whether the case is suitable for resolution through mediation or whether court would be more appropriate
10
Q
What are some mediation services away from the conventional solicitor’s office? (4)
A
- DMS (dispute mediation service)
- CEDR
- The Mediation Room
- West Kent Mediation
11
Q
Explain Conciliation (5)
A
- Involves a third party taking a more active role
- Common in industrial disputes - ACAS is the biggest conciliatory body
- It’s a prevention rather than cure approach
- Used in access to services for the disabled
- Can be used to avoid industrial strikes
12
Q
Explain Arbitration. Governed by what Act? Common in what cases? Is the result binding? etc (7)
A
- Governed by the Arbitration Act 1996
- Common in commercial contracts and sporting disputes
- The result is binding on the parties
- A flexible procedure (e.g number of witnesses, where, when etc)
- One can choose a specialist in the field or a legal professional as the arbitrator
- Must be carried out in judicial manner in line with natural justice
- Scott v Avery clause
13
Q
What is a Scott v Avery clause?
A
- An official agreement to arbitrate before contract
14
Q
What does s1 of the Arbitration Act 1996 state? (2)
A
a) the object of arbitration is to obtain the fair resolution of disputes by an impartial tribunal without unnecessary delay or expense
b) the parties should be free to agree how their disputes are resolved, subject only to such safeguards as are necessary in the public interest
15
Q
An agreement to arbitrate will usually be in what form? Why?
A
- Writing, as the Arbitration Act 1996 applies only to written arbitration agreements
16
Q
What does s15 of the Arbitration Act 1996 state? (2)
A
- That the parties are free to agree on the number of arbitrators, so that a panel of two or three may be used or there may be a sole arbitrator
- If the parties cannot agree on a number then the Act provides that only one arbitrator should be appointed
17
Q
How is an arbitrator appointed? (3)
A
- Arbitration Act 1996 states that the parties are free to agree on the procedure for appointing an arbitrator
- Most agreements will either name an arbitrator or provide a method of choosing one
- It is often provided that the president of the appropriate trade union will appoint the arbitrator
18
Q
What does the Institute of Arbitrators do? (2)
A
- Provides trained arbitrators for major disputes
- In many cases, the arbitrator will be someone who has expertise in the particular field involved in the dispute, but if the dispute involves a point of law, the parties may decide to appoint a lawyer
19
Q
What happens if there is no agreement on whom or how to appoint?
A
- As a last result the court can be asked to appoint an arbitrator
20
Q
What is a paper hearing?
A
- Where the two sides put all the points they wish to raise into writing and submit this along with any paperwork to the arbitrator. The arbitrator then reads all the documents and makes a decision
21
Q
What is an oral hearing?
A
- Once the arbitrator has all the documents, both parties attend a hearing at which they make oral submissions to the arbitrator to support their case
22
Q
Describe the decision made by an arbitrator (4)
A
- Called an award
- Binding on the parties
- Can even be enforced through the courts if necessary
- The decision is final, although it can be challenged on the grounds of serious irregularity in the proceedings on a point of law
23
Q
What are the advantages of mediation? (5)
A
- Good alternative to court
- It is a private and confidential process
- It is quick, cost-effective, harmonious and accessible
- There is an objective ref
- The agreement is legally binding
24
Q
Why is mediation a good alternative to court?
A
- Cheaper, and will hopefully reduce the number of divorce cases going through court
25
What are the disadvantages of mediation? (5)
- The dispute may end up going to court anyway if mediation fails, resulting in greater costs
- Successful mediation takes about 3-5 days, whereas courts can reach a decision in a day
- Not all mediators are lawyers, which can cause issues when a legal point arises
- Many also take legal advise, and so save very little money
- The parties cannot use the content of sessions as evidence in legal proceedings
26
What are the advantages of negotiation? (5)
- Quick and easy
- Cheaper than court
- Involves a private contract
- Quick resolution, maintaining relationships
- Relatively informal method of resolution
27
What are the disadvantages of negotiation? (3)
- Involving solicitors can make the process costly
- Offers are often exchanged and are not agreed until the day of court; wasting time and money
- People see it as a "halfway" house and think that they are not receiving as much as if they had gone to court
28
What are the advantages of conciliation? (4)
- Cheaper and quicker than litigation
- A private and confidential process
- Conciliator takes an active part
- Allows for non-legal common sense solutions
29
What are the disadvantages of conciliation? (2)
- Heavily relies on the skills of the conciliator
| - The dispute may end up going to court anyway if conciliation fails, resulting in greater costs
30
What are the advantages of arbitration? (5)
- The parties have discretion as to the choice of arbitrator with the existence of the Institute of Arbitrators
- The hearing procedure is left to the discretion of the parties; they can choose the venue, date, number of witnesses etc
- There is rarely any publicity
- The award is binding and can be enforced by the courts
- The arbitrator is an expert in the field
31
What are the disadvantages of arbitration? (4)
- Public funding is not available, so one party may have an advantage from the offset
- Appeals are restricted in the arbitration process
- Parties may feel that they do not get their 'day in court'
- If a legal point arises, there is not always a legal professional in the hearing
32
What are tribunals? (2)
- "Specialist courts" dealing with different areas of law e.g Immigration, Employment etc
- Inferior to the courts
33
What are the advantages of tribunals? (4)
- Cheaper and quicker than courts - many cases are dealt with in a day with no legal representation
- Procedure is simple, much more informal, and most cases are private
- Experts are involved in decision making; more flexible because they are not bound by precedent
- Avoids congestion of ordinary civil courts
34
What are the disadvantages of tribunals? (4)
- Public funding not available
- Tribunals do not give reasons for their decision, which makes it difficult to appeal
- Lack of adherence to precedent makes it difficult to predict the outcome of cases
- Lack of publicity means that issues of general public importance could be missed
35
Why is court action not always the most appropriate means of resolving a dispute? (6)
- Complexity of legal procedures
- Cost of court action
- Intimidating atmosphere of the courts
- The delay in resolution
- The public nature of court action
- The adversarial nature of court action
