ADR

  • Created by: Becca_67
  • Created on: 29-12-18 09:34
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  • ADR
    • Mediation
      • A neutral 3rd party
        • Non-Active Role
          • Mediator sees how much common ground there is between them
            • only suitable where there is hope that the 2 parties can cooperate
              • As an agreement must be reached
                • EG. In family cases such as child cutody they must prove they have attended a MIAM before going to court
                  • Disadvantage
                    • no guarentee of a resolution so may have to go to court increasing costs and delay
                  • Advantage
    • Conciliation
      • A neutral 3rd party
        • Active Role
          • helping the parties have a better understanding of each others position
            • the parties have full control and can withdraw at any point.
              • in industrial disputes -  ACAS can give an impartial decision on the legal position and act as a conciliator
                • Advantage
                  • decision is based off common sense and compromise
                • Disadvantage
                  • no guarentee of resolution
    • Negotiation
      • process of coming to an agreement
        • the most informal way
          • solicitors can be used but only while still negotiating a settlement
            • Advantage
              • cheapest method
              • no need for lawyers
            • Disadvantage
              • may not be successful
    • Tribunals
      • operate alongside the court system
        • enforcing entitlement to certain rights
          • eg. mobility allowance
          • First Tier = 60000 a year
            • 7 Chanbers = - Social entitlement    -  Health anf Education      - War pensions and Armed forces - Taxtion, Lands and Property         - Asylum and Immigration     - General Regulatory
              • Upper Tribunals = Appeals
                • Both sides given chance to put their case
                  • Can be done in a very formal way with witnesses
                    • Funding is only available for few tribunals so usually no lawyers
                      • except in Employment tribunals where representaion is covered by their union
                        • Tribunal Judge must make sure thet applicant puts their case fully
                          • Decision is then binding
                            • Advantage
                              • costs less
                              • no fear of large bill
                            • Disadvantage
                              • Lack of legal aid if other side has a lawyer
      • TRIBUNALS COURTS AND ENFORCEMENT ACT 2007
    • ODR
      • Ebay
        • resolves 60 million disagreement each year
          • initially encourage online negotiation
            • to do this there is clearly structured practical advice
              • ebay then offers a resolution service in whcih the parties enter a discussion area
                • ebay then determines a binding decision under its Money Back Guarentee
      • Financial Ombusman Service
        • established by statute in 2000 as the mandatory ADR body in the financial services
          • function is to resolve disputes between consumers and Uk financial businesses quickly anf informally
            • works on the principle that a dispute is usually resolved at the earliest possible stage
              • the adjudicators attempt to facilitate an amicable resolution usually resulting in the adjudicators writing to parties with their view on an outcome
                • if both parties agree the dispute is resolved
                • if they disagree they can ask to be referred to an ombudsman for a binding determination (if the consumer accepts it)
      • Resolver
        • helps consumer raise complaints with suppliers
          • contains email contacts with complaint departments
            • the consumer is given online assistance in drafting the complaint through a form filling exercise
              • the businesses are urged to respond to the Resolver email address so the exchange of messages can be stored
                • covers, energy, telecoms, transport, loan companies etc
                  • it's free of charge for all
    • Arbitration
      • 2 parties agree on either  single arbitrator or panel of arbitrators
        • Scott V Avery Clause = a commercial clause that states that if a dispite arises they must go to arbitration
          • ARBITRATION ACT 1996
            • fair and impartial decision without unecessary delay and cost
              • date and time are agreed by the parties
                • if the parties cant agree on an arbitrator the court wil appoint one
                  • Untitled
    • Online Courts
      • propsed in 2016
        • hoped to be in place by 2020
          • stage 1 = largely automated interactive online process for the identification of the issues and provision of evidence
            • stage 2 = conciliaion and case management by case managers
              • stage 3 = used if not resolved by stage 2 = resolution by a judge who would use documents on either a screen or phone
                • ODR for Low Value Claims = intention is that cases are dealt with quicker with lower costs
                  • this would be affordable for everyone regardless of income
                    • accessile for those with disabilities
                      • OD Advisory Group of the Civil Justice Council
                        • thoguth that the current system fails on many points and that online courts allow better access to justice
                          • However it isnt appropriate for all cases like negligence

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