ADR

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  • Created on: 17-04-14 10:43
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  • Alternative Dispute Resolution
    • Negotiation
      • Dispute between two people, you try to negotiate directly with one another, and you have to try to reach an agreement.
        • Process is very informal and only involves the two parties, however if an agreement cannot be reached then solicitors may be involved.
      • E.g Maureen Todd and Desmond Congdon - used negotiation to reach an agreement in regards as to how to split their £3million lottery win.
      • Advantages - Private, quick, and cheap.
        • Disadvantages - If a solicitor gets involved it can become expensive, but cheaper than going to court. Also, some cases can drag on, which will delay the outcome.
    • Mediation
      • Third party  called a mediator will try and help the parties reach a compromise and resolve the dispute.
        • Mediator won't give their opinion, but will act as a 'facilitator' who will talk to each party, explore their position and look for the needs of the parties.  At the end the parties are in control and they make the decisions.
      • E.g Commercial mediation services are used for businesses, mediation in divorce cases and local mediation services such as UNITE.
      • Advantage - cheaper than going to court, both parties are usually involved, even if a full settlement isn't resolved, usually something is agreed. Recent survey found that 70% of mediation cases were resolved completely.
        • Disadvantage - No guarantee it will resolve anything
    • Conciliation
      • Involves a third party called a conciliator who helps the parties resolve their dispute, they will play an active role and will give their opinions about what is best and they can also suggest grounds for compromise.
      • E.g Advisory conciliation and arbitration service (ACAS) and Disability Conciliation Service (DCS) - ACAS - Strike, London buses and DCS Kevin Caulfield V Natwest
      • Advantages - Conciliation can be very successful, 2/3s of ACAS cases are either settled or withdrawn following conciliation
        • Disadvantage - In some cases there is a balance of power especially when the employee doesn't have a legal representative - maybe forced into settlement and there is never any guarantee that there will be a compromise.
    • Arbitration
      • The parties will submit case to arbitration, third party involved called an arbitrator who will act like a judge. They will consider both sides and then make a ruling, this will only apply to written agreements.
        • The process of arbitration is that both parties must agree on an arbitrator, the arbitrator will have some expertise in the relevant field, no need for witnesses.
      • E.g many commercial contracts contain the Scott V Avery clause, which means that if a dispute arises they must go to arbitration before going to court, and the travel group ABTA which handle disputes between holiday companies and customers.
      • Advantage - Money saved in the long run, as is time because of the arbitrators expertise meaning there will be no expert witnesses and awards are usually final.
        • Disadvantage - Can cost a lot as fees are high and appeals are limited and delays can occur.
    • Tribunals
      • Run parallel with the courts and these are a way of enforcing peoples rights in relation to social and welfare issues. The parties in tribunal cases cannot go to court to resolve dispute, e.gs of tribunals are employment, immigration and rent tribunals.
        • E.g - Miriam O'Reilly  BBC presenter won employment tribunal on the grounds of age discrimination.
        • Most tribunals consist of a panel of three people, a legally trained chairperson, and two lay people with expertise in the relevant field.
        • Procedure can vary, but basic elements are people can present their own cases and they don't need a lawyer, no rules of evidence. However, both parties are given an equal chance to state their case.
      • Advantage - Cases are dealt quickly and cheaply compared to going to court and the procedure is simple and informal. Panel has a good balance of expertise.
        • However, public funding isn't available for tribunals, so people have to represent themselves. Can be bad for those going against a big firm as the firm will be able to pay for a lawyer.

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