Alternative Dispute Resolution

    Cards (28)

    • ADR:
      • Good way of avoiding going to court to resolve civil law matters
      • Are 4 methods of ADR which we will look at
      • Vary in levels of formality, cost, and strength of outcomes.
      • Usually completely optional and parties can always decide to drop out and take their case to court instead.
    • Why not courts:
      • Too expensive - court fees plus legal fees plus potential costs from the other side if you lose.
      • Too slow - cases can take months to get to court
      • Too rigid - the courts are bound to follow the rule of precedent when making their decisions. Are also lost of formalities in the courtroom to follow.
      • Too intrusive - questioning can be invasive
      • Too public - many businesses will want to keep these matters private.
    • Binding decision - is when an agreement between the parties is set in stone. Failure to follow the terms of a legally binding agreement can result in court action.
    • Third Party - someone who is not involved in the dispute/ disagreement. Usually completely unknown by the parties and independent from them.
    • Dispute - disagreement between two parties
    • Parties - people or businesses involved in a dispute
    • Methods of ADR:
      • Arbitration
      • Mediation
      • Conciliation
      • Negotiation
    • Arbitration:
      • Arbitration Act 1996, s.1
      • Decision is made by a Third Party Arbitrator (or panel)
      • Acts like a judge
      • Has legal and Specialist knowledge
      • Independent of the parties
      • Sometimes chosen by name by the parties
      • Charges a fee 9usually very expensive)
    • Arbitration - process:
      • parties choose to go to arbitration, sometimes as contract between them requires it.
      • Arbitrator is appointed (either named in contract or process to appoint one is explained in contract)
      • Both parties present their case to arbitrator separately
      • Can be by way of a report in a 'paper hearing' but can be in person like a hearing or on Teams
      • The arbitrator then considers each side and makes a decision
      • This decision is binding and there aren't automatic rights to appeal it.
    • Arbitration:
      • Types of cases:
      • Used most frequently with commercial contracts between business.
      • Where a contract includes a Scott v Avery clause (which is common in business agreements), the court will refuse to look at a case until it has been through arbitration first.
      • Private
      • Means it is often used by businesses who want to keep disputes out of the media
    • Arbitration:
      • Legally Binding decisions are made:
      • Can only be appealed for irregularity (e.g. bribery) OR if the arbitrator is shown to have interpreted the law incorrectly.
      • The hearing is set at a time and place to suit the parties:
      • Or can be all done through paper/ electronic reports with no need for a fixed meeting.
    • Advantages of Arbitration:
      • Parties can chose their arbitrator
      • Procedure up to the parties
      • Privacy
      • Award is binding
      • Arbitrator is an expert
    • Negatives of Arbitration:
      • Appeals restricted
      • No legal professional
      • Can be expensive
      • Precedent does not apply
    • Mediation:
      • Uses a third party mediator:
      • Qualified professional mediators
      • Main role is to help communication
      • Helps the parties to define their issues
      • Acts as a messenger if parties cannot be in the same room together
      • Is NOT allowed to give advice to either party.
    • Mediation - process:
      • The parties agree to meet with a mediator at a specific appointment time
      • The parties and the mediator sit together and discuss their issues
      • The aim is for the parties to agree on a compromise
      • If they do agree, they can sign a legally binding agreement
      • However, if they do not agree, no decision is made
    • Mediation:
      • Types of cases:
      • mostly commonly used for divorce and child custody issues
      • Family Law Act 1996 requires this before court hearings
      • neighbour disputes may also use mediators or disputes between colleagues at work.
      • Private/ neutral setting
      • Mediator fee payable:
      • up to £425 for 4 hour session
      • Legally binding IF an agreement is reached
      • parties can decline to sign an agreement which leaves them without a remedy
    • Advantages of Mediations:
      • Cheap
      • Reflects interests of parties
      • Preserves relationships
      • Legal agreement binding if reached
    • Disadvantages of Mediation:
      • Not legally binding if no agreement reached
      • Not useful where parties are entrenched
      • Too informal
      • Imbalance of power.
    • Conciliation:
      • Uses a Third Party Conciliator:
      • very similar to mediator
      • only difference = a conciliator CAN and WILL give advice to the parties and suggest what terms they should agree to
    • Conciliation - process:
      • The parties agree to meet with a conciliator at a specific appointment time (Sometimes via conference call or in person)
      • The parties and the conciliator sit together and discuss their issues
      • The conciliator will suggest the terms that the parties should agree to
      • If the parties agree to those terms, they can sign a legally binding agreement.
      • However, if they do not agree, no decision is made.
    • Conciliation:
      • Types of cases:
      • Industrial Disputes/ Employment Issues (employer & employee)
      • ACAS = Advisory, Conciliation and Arbitration Service
      • Private/ neutral setting
      • Conciliator fee may be payable
      • Usually an hourly rate (but not for ACAS)
      • Legally binding if parties agree to conciliator's suggestions
    • Advantages of Conciliation:
      • Conciliator usually an expert
      • Private
      • Flexibility
      • Conciliator can give advice
    • Disadvantages of Conciliation:
      • Not legally binding if no agreement reached
      • Too informal
      • Imbalance of power
      • No appeals or legal aid
    • Negotiation:
      • Involves no required Third Parties
      • Negotiation can be completely informal
      • Where the two parties discuss their issues and reach a compromise
      • Can be done by telephone, email, or face to face
      • Or can be through any method of communication electronic or in person
    • Negotiation:
      • Some Negotiations can be more formal
      • Sometimes parties will hire lawyers to negotiate for them
      • This is mostly used by businesses
      • Types of cases:
      • Any
      • Probably every civil law issue beings with negotiation - although not all manage to get resolved this way.
    • Negotiation:
      • Is common for negotiation in civil court cases to continue even up to the door of the court room.
      • If an agreement on paying compensation is made between the parties (instead of being ordered by the court). It is called a settlement
      • There is no fixed procedure for negotiation
      • There can be no costs at all - unless parties hire lawyers to represent them
      • In which case an hourly fee applies (and can get very expensive)
    • Advantages of Negotiation:
      • Completely private
      • Quick resolution
      • Maintain relationships
      • Informal
    • Disadvantages of Negotiation:
      • Can be costly is lawyers are used
      • Often agreements made right before court
      • Inequality of bargaining power
      • Seen as half way house