law revision on ADR

what are the methods of dispute resolutiob?

negotiation- parties themselves

mediation- parties with the help of neutral party

conciliation- parties with the help of neutral party who plays an active role in suggesting a solution

arbitration- parties agree to let third paty make a binding decision

litigation- parties go to court and a judge decides the case

what is negotiation?

anyone who has a dispute with someone can try to resolve it by negotiating directly with them

what are the advantages of negotiation?

completely private

quickest and easiest method of settling a dispute

if there is no agreement, parties will usually consult a solicitor who will try to negotiate a setlement

reflected in many cases that once case is settled outside of court , lawyers continue to negotiate on behalf of their clients

what are the disadvantages of negotiation?

once lawyers are involved there will be a cost element

the longer the case goes on the higher the costs

cases that drag on usually end in an agreement at the door of the court, on the morning the trial is due to start

it is this situation the other ADR are aimed at avoiding

what is mediation?

where a neutral mediator helps the parties to reach a compromise solution

what is the role of a mediator?

consult each party and see how much common ground there is between them

he/she will explore position of each party, look at their needs and carry offers to and fro whilst keeping confidentiality

what will the mediator act as?

as a facilitator so that an agreement is reached, but will not give parties his views of merit about the dispute

however what can the mediator be asked about?

his opinions on the merits of the dispute mediation, and this becomes more of an evaluation excercise which again aims at ending the dispute

when is mediation suitable?

only suitable when there is some hope that parties can co-operate

e.g companies which negotiate contracts with each other benefit from this approach

what can mediation take?

different forms and parties will choose exact method they want

who's in control?

parties they make their own decisions

what is formalised settlement conference?

a more formal way of approaching mediation

what does it involve?

mini trial where each party presents its case to a decision making executive panel and a neutral party

what happens once all the submissions have been made?

the executives with the help of the neutral advisor, will evaluate 2 sides' position and try to reach an agreement

what happens once all the submissions have been made?

the executives with the help of the neutral advisor, will evaluate 2 sides' position and try to reach an agreement

what happens if the executives can't agree about the evalution?
neutral advisor will act as a mediator between the2 of them

what happens if the matter still isn't resolved?

this type of procedure may be able to narrow down the issues so that if the case does go to court it will not take so long

what are the advantages of formalised settlement conference?

the decision need not be a strictly legal one sticking to the letter of the law

more likely to be based on commercial common sense and compromise

easier for companies to continue to business together and may include further agreement between the 2 businesses- t
this is something that can't happen if the court judges as it's only concerned with the present dispute

avoids the adversarial conflict of the court room and winner/looser results of the court proceedings

with mediation everyone wins

disputes solved using mediation has saved what?

several of thousands of pounds compared to the process of litigation

what are the disadvantages of using mediation services?

no guaruntee that the case will be resolved and it will then be necessary to go to court after failed attempt

in such situations there is additional cost and delay through trying mediation

to resolve smaller disputes such as disputes between nieghbours what does the mediation service offer?

free service which will resolve matters such as noise, car parking, dogs and boundary fence disputes

who is the service run by?

volunteers who are trained not to take sides or make judgements on the rights or wrongs of an issue

what will they usually do?

visit one party who has made the complaint to hear their side of the matter, if that party agrees, ask to visit the other person and get thier point of view

what are the comments on advantages and disadvantages of mediation services?

adv- even if case was not resolved during the mediation process. parties were likely to go to court than in non-mediated cases

disadv- amounts paid in mediated cases are often lower than the amounts agreed in other settlements and considerably lower than amounts awarded by courts

successful mediation requires a skilled mediator with natural talent, honed skills and accumulated experience. if these qualities are not present.

mediation can only be seen as bullying excersise.

weaker party may be forced into some sort of settlement

whatis the overall comment on mediation services?

voluntary mediation can promote early settlement and lead to a situation where the sense of greivance is reduced and an acceptable settlement is reached

what is concilation?

similar to mediation where third party tries to resolve the dispute but has more active role such as to suggest grounds for compromise and possible basis for a settlement

consiliation doesn't necessarily mean what?

it will lead to a resolution but may also continue with a court actio

what are the 2 processes for arbitration?

1st one- an informal procedure to hear cases such as proceedings in the commercial court of the queen's bench division

2nd one- where the parties agree to submit their claims in private arbitration-this is relevant to ADR as it's another way of resoving a dispute without the need for court case

what is arbitration?

voluntarily submission by parties of their dispute to the judgment of a person. other than a judge

in what form is such an agreement usually put?

in writing as applied in the arbitration act and the precise way in which the arbitration is carried out is left almost entirely to the parties' agreement

who is the agreement of arbitration made by?
parties at any time - can be made before a dispute arises or when a dispute seems apparent or even after a dispute has already occured

where there is an arbitration agreement what does the court do?
refuse to deal with the case, matter must go to arbitration as agreed by the parties

for what claims are the rules different for?
consumer claims where dispute is for an amount which can be dealt with the small claims track. in such cases consumer may choose whether to abide by the agreement or go to private arbitration or to insist that the case is heard in small claims track

more common and popular in commercial cases

parties can choose what?

number of arbitrators, if they canot agree then only one arbitrator will be appointed

what are parties free to agree on?

on the procedure for appointing an arbitrator.

most agreement to go to arbitration will either name an arbitrator or provide a method of chooseing one

commercial contracts e.g president of appropriate trade organisation will appoint the arbitrator

what does the institute of arbitrators provide?

trained arbitrators for major disputes especially such arbitrators who have expertise knowledge on a particular field

but if dispute involves a point of law then what must the parties decide?

to appoint a lawyer

what if there is no agreement on who and how to appoint?

then the court is asked to appoint an appropriate arbitrator

who is the actual procedure left to and why?

left to agreement of parties in each case so that there is many forms of hearing

in some cases what may parties opt for?

paper arbitration- where each party submits their points into writing and any other relevant docs to the arbitrator. read the 2 sides' points and make a decision

what can the do alternatively?

they can send the docs to the arbitrator and before he makes a decision, there is a hearing to which the parties can make oral submissions to the arbitrator to support their case

who can be brought into the hearing?

witnesses to give evidence but this will be an oath, however parties can require that they do so and it will be a formal procedure

if witnesses are called in what does the arbitration act allow?

for the use of court proceedings to ensue attendance of these witnesses

who are date,time and place of arbitration decided by?

parties in consultation of the arbitrator. great degree of flexibility for proceedings so that parties can choose what is most convenient for all the people concerned

what is the award?

the decision made by the arbitrator and is binding on both parties

what can be enforced into?

through the courts if necessary

decision is usually final though what can happen?

it can be challenged in the courts on the grounds of serious irregularity in the proceedings or on a point of law

what are the advantages of arbitration?
parties can make own arbitration agreement and see how formal or informal they want the procedure to be

they may choose by whom the matter is going to be best dealt with i.e lawyer or professional arbitrator

time & place of hearing can be arranged to suit parties

procedure more relaxing than court

dealt in private, no publicity

dispute resolved more quickly than in court

cheaper than in court

awards is final and can be enforced through courts

why is question of quality being decided by an expert an advantage?

saves expenses as there wouldn't by any calling of expert witnesses &

saves time aswell as technailities won't have to be explained to judge

what are the disadvantages of arbitration?

when parites aren't on an equal footing as regards their ability to present the case

legal aid not available for arbitration-disad to individual against a business

unexpected legal point may arise in a case- not suitable for a non-lawyer arbitratorto make decision

professional arbitrator-fees can be exspensive

exspensive if both parties opt for formal hearing, witnesses givin evidence&lawyers representing both side

right of appeal are limited

why is delay for commercial/international (maybe as nearly as great as in courts if professional arbitrators and lawyers are used) arbitration a disadvantage?

problem of delay and expenses meant that businesses turned away from arbitration and were opting for other ADR

what are otherdisadvantages of arbitration?

some choose to reolve matter in another country or by centre dispute resolution

law on arbitration has become more complex and the arbitration act is aimed at improving it

what types of disputes are suitable for arbitration?

commercial agreements between 2 businesses

where parties have little hope of finding sufficient common ground so as to make mediation a realistic prospect,

also if provided there are no major points of law included