strength/weakness ADR Flashcards
(14 cards)
COST is an advantage as
cases are dealt with more cheaply than in the courts as parties are encouraged to represent themselves and not use lawyers. Cases are also dealt with quicker, which reduces the cost. This means that disputes are resolved with as little strain on the parties as possible.
On the other hand however, a disadvantage is that costs can be significant, with
skilled mediators being expensive, and legal representation by solicitors and even barristers being increasingly common as parties do not want to be at a disadvantage. [Legal representation is very common in arbitration]. Also, legal aid is not available, so a party may represent themselves, which puts the other party - often an employer or business - at an unfair advantage if they use a lawyer.
SPEED is an advantage as disputes are resolved much quicker than
in the courts. Court hearings can last many days and even weeks. [Mediation usually lasts one day, and negotiation and conciliation can be even quicker). This makes the process of resolving a dispute less stressful.
On the other hand however, [negotiation, mediation and conciliation] is not compulsory, so
one party may simply not attend. There is no guarantee that the dispute will be resolved, and relies on both parties to co-operate. This means that parties may be forced to attend court, which is costly and lengthy.
PRIVACY is an advantage as matters are dealt with in private, and bad publicity is
avoided, unlike in the courts which are open to being reported by the media. This also helps to preserve relationships for the future, for example businesses are more likely to continue to deal with each other if a dispute has been resolved in private.
On the other hand however, a disadvantage is that a party may want their “day in court” to resolve a matter in a very
public way, with maximum bad publicity for a party who has behaved dishonestly. This is only provided by the court system. Also, because decisions in [negotiation, mediation and conciliation] cannot be enforced, there is no pressure to adhere to the compromise, meaning the parties may go through the whole process without getting a resolution.
EXPERTISE is an advantage because knowledge of a particular area will increase the chance of reaching a
fair settlement. A civil court judge is a legal expert, but may not have knowledge of a particular type of business or activity. This means that the best possible decision is made for both parties. [The mediator, conciliator, arbitrator will have expert knowledge, as will a lawyer involved in negotiation]. [Note: no ‘on the other hand’ disadvantage here).
However, to keep costs down, parties may choose to engage with
an unskilled negotiator/mediator, which could results in an unproductive procedure.
FLEXBILITY AND CONTROL is an advantage. The parties are free to choose the time, place and procedure used to resolve the dispute, to fit in with working commitments, unlike
in the courts. This flexibility means that procedures are less formal than in the courts, which reduces the stress levels for the parties, and creates an atmosphere of ‘compromise, whereas a court case is adversarial, producing winners and losers. (The parties can choose the mediator or arbitrator].
On the other hand however, a lack of formality can be seen as a disadvantage. The lack of judicial precedent means that there is
uncertainty about outcomes, and weaker parties may be pressured in to compromising. There are also no disclosure rules [in negotiation, mediation and conciliation], so each party may withhold important information. A party may want their “day in court” before a judge. (With mediation, conciliation and negotiation there is no guarantee of resolving the dispute, and a court case may follow]. [With arbitration, although the arbitrator’s award is binding, the ability to appeal a decision is limited, compared to the courts).
NEGOTIATION
+ Cost
+ Speed
- Compulsory
+ Privacy
- Day in court
+ Expertise (lawyer if involved)
- Unskilled
+ Flexibility + Control
- Formality
MEDIATION
CONCILIATION
ARBITRATION
