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12 Cards in this Set
- Front
- Back
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ADR vs. Court Proceedings |
ADR: • Is cheaper and quicker • Done in private (+ for businesses) • Informal (maintain relationships) ADR may be more suitable - e.g. expert in area for arbitration Court: • Expensive and longer • In public • Adversarial BUT only arbitration and court is legally binding |
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What is Arbitration and how is it carried out? |
Arbitration is the referral of a dispute between 2+ parties to a 3rd party to make binding decision. It is governed by the Arbitration Act (1996), states: aim is to obtain fair resolution without delay or expense, for parties to be free to agree how resolved. Arbitration Act says parties can choose arbitrator or provide method of choosing:. • Commercial contracts: often provided that the president of relevant trade organisation will appoint it. • Trained arbitrators from Institute of Chartered Arbitrators may be hired for major disputes. • In many cases it could be someone with expertise in field or if it involves point of law a lawyer. HEARING: paper arbitration chosen: All evidence given in writing with any relevant documents. Hearing takes place - evidence given on oath (occurs in court of law ) person. Witnesses may be compelled. Decision (award) made. Can be enforced by courts. |
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When is Arbitration agreed to? |
Via the Scott v Avery Clause. Usually parties are companies, can be individual consumers. Gives up their legal right to court |
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Advantages and Disadvantages of Arbitration |
Advantages: • It is voluntary • Convenient - the parties have a choice of time and place • Cheaper • Takes place in private • No delays and decision is immediate • Courts may enforce the arbitrators award
Disadvantages • Adversarial process - someone still wins (award) • Cost may be wasted if challenged in court • May be lengthy - if arbitrator refers point of law to a judge - so hearing adjourned • Unable to appeal if new evidence arises • Legal aid not available, process often expensive • Less predictable outcome than court |
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What is Meditation? |
Meditation is all about compromise. Mediator is neutral and helps parties reach a compromise. Role is to see each and discuss if there's any common ground - only facilitator • Best suited for family, employment, neighbour disputes |
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What is a formalised settlement conference? |
This regards mediation and is rarely used - involves big companies (NOT) used by individuals. Involves a "mini-trial" - each party puts forward its case. Panel = one from each party & neutral party Once submissions made, they compromise; if unable neutral act as mediator or court action |
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Advantages and Disadvantages of Mediation |
Advantages: • Private - also businesses protect rep. • Mediator is neutral • Not adversarial - commercial relationships can continue Disadvantages: • One party only agreed to assess strength of others' case • May not be suitable - one wants to go to court or relationship already broken down. • Cannot be legally enforced |
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What is Conciliation? How does it differ from Mediation? |
A neutral 3rd party helps to resolve the dispute The role of the conciliator is more active than that of the mediator - they suggest grounds for compromise |
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Where is conciliation usually used? |
In industrial disputes between management and workers - e.g. 2015/16 Junior doctors dispute over new contract imposed by Health Minister - went to ACAS • ACAS is the main conciliation body = Advisory, Conciliation and Arbitration Service |
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Disadvantage of Conciliation |
Like other forms of ADR, it may not lead to a resolution, hence court action may ensue. |
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What is Negotiation? |
A party can negotiate directly with the other party to reach a resolution. It is used where court action is intended. NO 3RD PARTY INVOLVED, although solicitors may be introduced when court proceedings commence. |
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Advantages and Disadvantages of Negotiation |
Advantages: • It is completely private, cheapest and quickest form of ADR • If no agreement reached - solicitors instructed to reach settlement - may continue with court proceedings - can be settled OUT OF COURT Disadvantage: • Costly (if solicitors involved), negotiations may continue for years |
