Alternative dispute resolution mind map

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  • Alternative Dispute Resolution
    • Mediation
      • Where a neutral mediator helps the parties to reach a compromised decision
        • The mediator talks to each party and tries to find any common ground
      • only suitable if there is some hope that the parties can co-operate
      • Main point is that the parties are in control: they make the decision
      • Formalised settlement conference
        • More formal method of approaching mediation
        • Involves a "mini-trial"
          • Each party presents its to  panel composed of a decision- making executive from each party and a neutral party
            • The executives, with the help of the neutral advisor will evaluate the two sides' position and try to come to an agreement
              • If the executives cannot agree, the neutral advisor will act as a mediator between them.
                • Even if the whole matter is not resolved, this may be able narrow down the issues so that if it goes to case it will not take aslong
          • One advantage of mediation and a "mini trial" is that the decision need not be strictly legal one sticking to the letter of law
            • It is more likely to be based on commercial common sense and compromise
              • This makes it easier for companies to continue to do business with eachother in the future as everyone in the case wins.
      • Disadvantages of mediation services
        • No guarantee the matter will me resolved
          • Have to go to court after failed mediation attempt
    • Concilliation
      • Similar to mediation as neutral third party helps to resolve the dispute
      • Concilliator is expected to suggest grounds for compromise and the possible basis for a settlement
      • In industrial disputes ACAS can give an impartial opinion on the legal position
      • As with mediation, conciliation does not always lead to a resolution so it maybe necessary to continue with court action
    • Arbitration
      • Arbitration is a method of resolving a dispute by both parties voluntarily agreeing for an independent person to make a decision.
        • Decision made is legally binding
        • This person is called an arbitrator
      • Governed by "arbitration act 1996"
        • section 1 of arbitration act
          • To reach a compromised decision without any unnecessary fees and or heavy fees.
          • The people in the case are free to decide how the arbitration takes place as long as it does not infringe any human rights
        • Section 15 of the arbitration act
      • Choice to arbitrate can be made by the parties at any time
      • Scott v. Avery clause
        • Found in commercial contracts.
          • Where the companies agree in their original contract that if a dispute arises the dispute will be settled by arbitration
      • The arbitrator
        • Section 15 of the arbitration act
        • The institute of arbitrators
          • Provides trained arbitrators for major disputes
      • The award
        • The decision made by the arbitrator is called an award
          • Legally binding
            • Can be challenged in the courts on the ground of serious irregularity in the proceedings or on a point of law
      • Advantages
        • Parties can choose own arbitrator
        • Any questions of quality can be decided by an expert
        • Hearing time and place can be arranged to suit parties
        • Hearing is private
        • Quicker than court
      • Disadvantages
        • An unexpected legal point may arise which is not suitable for decision by a non-lawyer arbitrator
        • Professional arbitrators are expensive
        • The rights of appeal are limited
  • Different as conciliator plays a more active role than a mediator
    • Similar to mediation as neutral third party helps to resolve the dispute
  • Have to go to court after failed mediation attempt

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