Law AS ADR

Different stages of all the ADR topics along with advantages and disadvantages of each one

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  • Created by: Amber
  • Created on: 04-12-11 14:56

Negotiation

NEGOTIATION STAGES

The parties involved meet to discuss the total amount of money owed from one to the other. They may use lawyers however, if they do, they must talk through them and not directly to each other. If they cannot settle the dispute themselves then it may be taken to court.

NEGOTIATION ADVANTAGES

It is completely private, normally fast and cheap (unless lawyers are chosen to represent them) 

NEGOTIATION DISADVANTAGES

It doesn't always work, some cases can drag on for years and there is nothing legally binding 

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Mediation

MEDIATION STAGES

The parties involved hire a neutral mediator to help them reach a compromise to the situation. The mediator consults with the parties individually, evaluating both sides of it and carrying offers between the parties. The mediator does not offer his own opinion within the situation, and acts completely as a facilitator, helping the parties co-operate to find the solution.

MEDIATION ADVANTAGES

It is often substantially cheaper and faster than using litigation and rather then having one person 'winning' while the other 'loses' in a court scenario, mediation is a compromise so both parties benefit in some way.

MEDIATION DISADVANTAGES

There is no gurantee that the matter will be resolved so it may still end up in court. Professional mediators can be as expensive as using the court system and the amount of money awarded in mediation is often lower then in other settlements or in court. It is not legally binding.

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Formalised Settlement Conference

FORMALISED SETTLEMENT CONFERENCE STAGES

It is a more formal way of approaching mediation. Both sides present their case to a panel in a 'mini-trial' scenario who are made up of excecutives and a neutral advisor. They will analyse and evaluate the situation and try to help the two parties reach a compromise. 

FORMALISED SETTLEMENT CONFERENCE ADVANTAGES

The main issues of the case can be narrowed down to in the 'mini-trial' and it is often faster than litigation. Because it is not an official court hearing, it is often easier for the parties to continue working with each other after the dispute. It is a compromise so neither side suffers great loses and both benefit in some way.

FORMALISED SETTLEMENT CONFERENCE DISADVANTAGES

It may not always work and the case may still need to be taken to court. Though it is cheaper then litigation, if it fails then they have the costs of the panel as well as the court costs. The awarded money will be lower then if it had been settled in court.

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Conciliation

CONCILIATION STAGES

Conciliation is similar to mediation though has one key difference: the neutral third party plays a more active role in the proceedings. They will be expected to suggest grounds for compromise and possibly come up with the basis for the settlement. 

CONCILIATION ADVANTAGES

It can be used at any stage in the dispute and can avoid the stress of the legal process. It is often cheaper and faster than litigation and conciliators are completely impartial.

CONCILIATION DISADVANTAGES

The settlement requires the co-operation of both parties which may not always work and one side may feel at a disadvantage if the other party is a larger organization. Most of it is done over the phone and it can be very difficult to get some parties to settle. It is not legally binding and may still end up in court.

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Arbitration

ARBITRATION STAGES

Both of the parties agree prior to a dispute (normally as a clause within a contract) that should a dispute arise, it would go to arbitration rather then to a court. Both parties submit documents and details about the dispute to a panel who will examine the case and make a judgement on it which IS legally binding. There is often a paper hearing, where they look at the documents, and an oral hearing where they listen to the case of those testifying.

ARBITRATION ADVANTAGES                                                                                   Experts within the area in question can be brought in as arbitrators and it can be more professional than a court hearing eg. if there was a question on the quality of an item, then someone would be allowed to give an analysis and judgement of it. It is faster than litigation and often cheaper, depending on arbitrators, lawyers etc. It is legally binding

ARBITRATION DISADVANTAGES

It can take a long time and be costly if it is a commercial or international affair. It is often hard to appeal against a judgement made is arbitration.

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Comments

Charlotte Pink

Thank you these were really helpful and gave all the information thats neede without making it complicated :)

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