Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
44 Cards in this Set
- Front
- Back
|
The least formal method of ADR |
Negotiation |
|
|
The main format of negotiation |
Parties directly negotiating between themselves |
|
|
4 different ways in which negotiation can take place |
Text Phone Call Letter |
|
|
Main advantage for negotiation |
Quickest and cheapest method |
|
|
Main expense of negotiation |
If a lawyer becomes involved to negotiate on your behalf or make the outcome legally binding |
|
|
Main disadvantage of negotiation |
It can take a long time which Woolf was trying to avoid |
|
|
Summary of mediation |
Informal and consists of a neutral 3rd party acting as a go between to facilitate cooperation and agreement |
|
|
Mediation is often used in this area of dispute |
Family - Family Mediation |
|
|
Mediation is not suitable if both parties are... |
Entrenched |
|
|
Is mediation legally binding? |
No, unless the agreement is drawn up by a solicitor which costs more money and defeats the point of ADR |
|
|
5 advantages of mediation |
Voluntary Saves time and money Reflects interests of disputing parties so is equal and fair Relationships preserved Actively encouraged by the courts under the Civil Procedure Rules |
|
|
5 disadvantages of mediation |
Not initially legally binding Not suitable if entrenched No legal aid Possible lack of expertise Too informal |
|
|
What two other forms of ADR is conciliation between in terms of formality? |
Mediation and arbitration |
|
|
What does the conciliator do? |
Makes offers and counter offers between the disputing parties without getting involved |
|
|
What is conciliation used for? |
To get a specific offer or outcome |
|
|
Why is conciliation okay if the parties are entrenched? |
The parties are kept separate with the conciliator simply shuttling back and forth between them. |
|
|
Explain how conciliation is flexible |
A time and date is set to suit the parties. |
|
|
What area of dispute can conciliation be used in? |
Business disputes using ACAS which deals with employment disputes |
|
|
What is the outcome of conciliation? |
The conciliator will offer a non binding opinion which can lead to a settled agreement between both parties, however it is not legally binding |
|
|
5 advantages of conciliation |
Conciliator normally a legal expert Private so no damage to reputation Reserve the right to go to court Flexible process Cheaper than court |
|
|
5 disadvantages of conciliation |
Not legally binding No guarantee of a decision Too informal and flexible No appeals No legal aid |
|
|
What is arbitration? |
Privatised litigation |
|
|
What disputes does arbitration deal with? |
Usually business disputes and is favoured by the commercial world and trade unions |
|
|
What law governs arbitration and what does section 1 of this law state? |
The Arbitration Act 1996 S1 - Arbitration should "obtain fair resolution of disputes" without delay, expense and to do it fairly. Courts should never intervene. |
|
|
Why is arbitration impartial? |
Parties are free to decide the case how they want. |
|
|
Who carries out arbitration and where are their procedures to be followed? |
The arbitrator and the procedures they need to follow are laid out in the Arbitration Act 1996. |
|
|
Why must parties agree in writing to attend arbitration? |
Because it is not compelling for them to go, however most do because it is far easier than going to court. |
|
|
What part of a contract requires parties to attend arbitration should a dispute arise? |
Scott v Avery Clause |
|
|
Who is the arbitrator? |
Not necessarily a judge or lawyer, but they are expected to be a legal expert in the disputed field. The disputing parties find their arbitrator to deal with the case. |
|
|
How must the process of arbitration be done? |
In accordance with the stipulated rules in a judicial manner to make the process formal. The arbitrator has the final say in the procedure to be adopted. |
|
|
What happens at the preliminary meeting? |
The arbitrator decides on the procedures and tries to achieve a consensus between the two parties so they can issue a consent order which reduces the risk of the ultimate award being challenged in court. |
|
|
What is the outcome of arbitration? |
The dispute can be resolved or the parties may come to some sort of understanding. The award is legally binding and can be enforced via the courts if necessary. |
|
|
5 advantages of arbitration |
Flexible process Ability to choose their arbitrator who can be a specialist Courts not involved so private process No delays - arbitration is cheap, easy and quick A Scott v Avery Clause compels people to attend |
|
|
4 disadvantages of arbitration |
No appeals so court is the only other option Possibly too flexible so too long to get a resolution Professional arbitrators are expensive Not fair if arbitrator isn't a legal expert |
|
|
Explain briefly tribunals and an example |
A considerable growth for them due to they are specialised as they resolve a dispute in a particular area such as mental health or employment tribunals. Courts are not well equipped to deal with all cases. |
|
|
What did Carnwatch LJ say about tribunals? |
That they are very important and are necessary in order for the civil courts to cope with demand. |
|
|
What did the 1957 Franks Report say about tribunals? |
Predicted they would become an important part of the legal system and that they should be marked by "openness, fairness and impartiality". |
|
|
What Act made tribunals a unified structure with different tiers? |
The Tribunals, Courts and Enforcement Act 2007 |
|
|
Explain first tier tribunals + an example |
Deal with around 300, 000 cases a year operating at 7 chambers such as the social entitlement chamber which covers a wide range of matter such as child support, criminal injuries compensation and gender recognition. |
|
|
Explain upper tier tribunals + an example |
Divided into 4 chambers such as the administrative appeals chamber which hears appeals from the social entitlement chamber; health, education and social care chamber; and the war pensions and armed forces compensation chamber. |
|
|
What happens at a tribunal? |
Both sides have the opportunity to present their case. Formal in employment or asylum tribunals but less formal in others. Parties represent themselves due to lack of funding with no lawyers. Judges ensure the applicant puts forward their case as fully as possible. The decision is legally binding. |
|
|
What are the appeal routes of tribunals? |
From a first tier tribunal, there is an appeal to an upper tier tribunal. From here there is a second appeal to the court of appeal and a further appeal to the supreme court. |
|
|
3 advantages of tribunals |
Legally binding so formal and fair. Cheaper alternative to court so cost efficient in terms of outcome. Much faster than courts as they are usually dealt with in one day which saves time for all involved. |
|
|
2 disadvantages of tribunals |
Possibility of a delay in actually getting a hearing. Public funding not available so one side may be at a disadvantage if the other side can afford a lawyer. |
