What is ADR and who first encouraged it?
ADR - This is where disputes are settled in other ways than litigation
Lord Woolf - In the Woolf reforms Lord Woolf recommened that people try to solve their disputes in as many ways possible before attempting to solve them through the courts
What are Judges allowed to do under the 1999 Civil
Judges are allowed to postpone court hearings to enable ADR methods to be used first.
Strengths and Weaknesses of the current Civil Cour
- Most binding form of agreement
- Get financial compensation
- Might Set precedent for future cases
- Costs large sums of money
- Takes a longer time
- Relations could be strained between parties afterward
- The large cost goes to the taxpayer
Give three reasons for use of ADR over court heari
Inflexibility - The rules of a courtroom aren't adjustable, and so using ADR means that the parties can take more control over how the situation is handled
Imposed Solutions - The courts impose a solution upon the parties without their consent, meaning these solutions have to be enforced - and may not always be followed. This could cause future problems. ADR allows the parties to decide for themselves on a solution, meaning this is less likely to happen
Publicity - A courtroom hearing is open to the public which some bussinesses may not be happy with. ADR can be settled in a private place.
What are the four main methods of ADR?
What is Negotation?
This is the very first step, before proper ADR really takes place - and attempts to solve the situation quickly without need for any other intervention.
This is where the two parties (or their solicitors) negotiate a solution to their problems. The longer this goes on the more it costs.This is the quickest method of resoltuion.
Breifly outline what arbitration is?
This is where 2 or more parties agree to have an independent person (not a judge) to make a decision on the situation. The decision they come to is legally binding and the judgment they make is called an award.
Describe the process of arbitration?
There are 2 ways arbitration can work:
Paper Arbitration - This is where both parties send the points they wish to make, off to the arbitrator so that their points can be judged and put into perspective.
Formal Arbitration - This is where a private hearing can take place between the 2 parties and witnesses can be called in.
Who Might the arbitrator be?
The Arbitration might be a lawyer, or an expert in the field that is being disputed.
What does section 1 of the Arbitration Act state?
This act states that the parties involved in a dispute can choose the amount of arbitrators involved. It also says that the court wont get involved in the disputes and that providing there is an arbitration agreement, this is the method that must be used to solve it. The arbitrator can be appointed jointly by the parties.
What is a scott and avery clause?
This is clause which goes into many business contracts. It states that if there is a dispute then the method of resolution must be arbitration and court action. The court will refuse to deal with the matter if a contract has a scott and avery clause in it.
Advantages and Disadvantages of ADR?
- The parties can choose their arbitrator
- A question of quality can be solved via an industry expert
- Hearing time + place arranged to suit both parties
- The procedure is flexible
- The matter is dealt with in private and there will be no publicity
- It cheaper
- The award can be enforced via the courts
- An unexpected legal point may arise (that can't be decided by the arbitrator)
- If a professional arbitrator is used it may be expensive
- A formal hearing cna be expensive
- The right to appeal is limited
- Delays can be as bad as the courts
What is a mediator and describe their roel?
A mediator is similar to an arbitrator. Except, a mediator helps both parties come to a compromise without actually imposing a solution upon them.
They are a neutral go between for the two parties in dispute. They try to establish some common ground between the two parties without offering an opinion to whose case is strongest. They aren't to solve it themsleves, and they are there to assist the parties in solving it themselves.
What two types of mediation are there, and describ
Evaluative - This is where th emediator gives an assessment of the legal strength of the case
Facilitative - The mediator merely assists the parties in reaching a compromise
What is a formalised settlement conference?
This is where a mini - trial takes place where each side presents their case. This is done infrong of a panel of 3, one decision maker from each side and the neutral mediator. The panel then arrive at a decision
Name the leading mediation services company?
The Centre for Effective Dispute Resolution (CEDR) in London
What are the two most common types of situation fo
- Social (e.g. neighbourly disputes etc.)
What is the typical cost of a mediator compared to
Around £1000-£1500 for a mediation service
Anywhere up to £100,000 for a court settlement
(especially in commercial situations)
Advantages and Disadvantages of Mediation, and wha
- It can be used to stall legal proceedings when one party is clearly in the wrong
- It can be time comsuming
- Amounts paid in compensation are less than court
- A mediator needs specialist skills
- Still more likely to settle the disagreement than in court
- Helps strained relations
- Even if the case isn't settled, ADR is still likely to be used afterwards
What is Conciliation
This is similar to mediation except a conciliator suggests the compromises to issues and then allows the parties to choose which is the best option.
Where is conciliation most commonly used?
During disagreements between employers and employyees. Employment disputes are often settles through ADR.
*Why is it offered?
To save both parties attending an employment tribunal
What does ACAS stand for?
Advisory Concilation & Arbitration Service