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40 Cards in this Set
- Front
- Back
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First type of ADR
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Negotiation
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Advantages of negotiation
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Private, quickest, cheapest
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If, in negotiation, parties cannot come to an agreement they can..
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instruct solicitors who will negotiate for them
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Second type of ADR
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Mediation
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What is the role of a mediator
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Consult each party and look for common ground. Explores position of each party while keeping confidentiality. Doesn't tell parties their own views
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Mediation only suitable if there is some hope that..
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parties can co-operate
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Advantages of mediation
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Based on compromise and common sense - the decision is not strictly legal. Makes it easier for businesses to do business in the future.
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One of the main mediation services
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Centre for Effective Dispute Resolution (CEDR)
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Disadvantages of mediation services
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No guarantee the matter will be resolved.
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Advantages of mediation services
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High number of cases are resolved this way. Issues may atleast be clarified.
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There are smaller mediation services for matters between neightbours etc
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West Kent Independent Mediation Service. Free service run by volunteers for local matters like car parking and noise.
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Third type of ADR
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Cociliation
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Similar to mediation but main difference is..
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Conciliator plays a more active role, suggests grounds for compromise
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Industrial disputes
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ACAS give an impartial opinion on legal position
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Fourth type of ADR
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Arbitration
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Arbitration covers two different processes: 1.
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Courts use informal procedure to hear cases
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Arbitration covers two different processes: 2.
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where the parties agree to submit their claims to private arbitration: which is relevat to ADR
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Private arbitration is goverened by
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ARBITRATION ACT 1996
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Principles behind arbitration: 1.
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To obtain the fair resolution of disputes by an impartial tribunal
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Principles behind arbitration: 2.
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Parties should be free to agree how their disputes are resolved, subject only to safe guards as is necessary in the public interest
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Arbitration is:
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The voluntary submission by the parties, of their dispute, to the judgement of someone other than a judge
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Clause where the parties in their original contract agree to arbitration when a dispute arises
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SCOTT V AVERY CLAUSE
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Court will refuse to deal with a case if
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there is an arbitration clause in their contract
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Parties are free to agree on number of arbitrators
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SECTION 15 OF ARBITRATION ACT
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INSTITUTE OF ARBITRATORS
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Provide trained arbitrators for major disputes
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Paper arbitration
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two sides put all points they wish to raise into writing and submit with relevant documents to the arbitrator
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Paper arbitration +
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same as paper arbitration but there is also a hearing, witnesses can be called
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'award'
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Legally binding, final.
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Advantages of arbitration
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Choose own arbitrator, expert.
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Advantages of arbitration
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Hearing time and place can be arranged by parties
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Advantages of arbitration
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parties can choose what kind of procedure to use: usually ends up informal and flexible
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Advantages of arbitration
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No publicity
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Advantages of arbitration
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Quicker than court hearing
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Advantages of arbitration
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Cheaper than court
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Advantages of arbitration
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Award is final and legally binding
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Disadvantages of arbitration
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Unexpected legal point may arise which is not suitable for a non-legally qualified arbitrator
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Disadvantages of arbitration
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Professional arbitrator is expensive
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Disadvantages of arbitration
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expensive if parties choose to have formal hearing with expert witnesses
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Disadvantages of arbitration
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rights of appeal are limited
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Disadvantages of arbitration
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Delays may be as great as those in courts
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