Alternative Dispute Resolution (ADR) Flashcards
Lecture 8 (help with AI for most cards) (17 cards)
What is meant by ADR?
- The idea that there should be viable/practical alternative through the court system
- CPR: “collective description of methods of resolving disputes otherwise than through the normal trial process”
What is the difference between adjudicative and non-adjudicative methods?
- A: Final and binding outcome for all parties, made by 3rd party (e.g., litigation, arbitration, complaints)
- N: parties control process and outcome with no 3rd party decision (e.g., negotiation, mediation, conciliation)
What does litigation involve? (link to lecture 7)
- Dispute arises
- Pre-action protocol
- Claim form issue and served
- Defence served and filed
- Allocated to one of the 4 case management tracks
- Directions on disclosure of documents, witness statements, experts
- Trial (judgement given in favour of Claimant or Defendant)
Where would ADR fit into the litigation process?
- Parties may negotiate and settle (NO civil action)
- Pre-action communications: encourages settlement and consideration of ADR
- Court can stay the proceedings after defence filed (enable parties to try and settle)
- Many cases settled at door of court
What is negotiation in ADR?
A process where parties communicate directly to resolve a dispute without 3rd party involvement
How does mediation differ from negotiation?
Mediation involves a neutral 3rd party (mediator) who facilitates communication to help parties reach a voluntary agreement)
What is the role of an arbitrator in ADR?
An arbitrator acts like a judge, reviewing evidence and making binding/non-binding decisions
What is the main advantage of ADR over litigation?
ADR is generally faster, less expensive, and more flexible than court proceedings
What is binding arbitration?
A form of arbitration where the decision made by the arbitrator is legally enforceable and final.
What is non-binding arbitration?
A form of arbitration where the decision is advisory and not legally enforceable unless both parties agree to it.
What is conciliation in ADR?
A process where a conciliator assists parties in reaching a settlement but may also propose solutions.
How does conciliation differ from mediation?
A conciliator may offer solutions, while a mediator only facilitates discussion without suggesting resolutions.
What is the role of a mediator?
To help disputing parties communicate and find a mutually agreeable solution without imposing a decision.
Why do businesses prefer ADR?
It helps maintain confidentiality, saves costs, and preserves relationships between parties.
What is the significance of the Arbitration Act?
It provides the legal framework for arbitration, ensuring that arbitral decisions are recognised and enforceable.
Can ADR be used in all types of disputes?
No, some disputes, like criminal cases or certain regulatory matters, require court intervention.
What is an example of a situation where ADR is commonly used?
Commercial contract disputes, employment disputes, and family law matters.
