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Alternative Dispute Resolution - Coggle Diagram
Alternative Dispute Resolution
negotiation
parties come to decision by themselves - anyone who has dispute with another person can try to resolve by negotiating direclty - face to face, via letters, over phone, email exchange
advantage of being private, quick and cheapest method of ADR
if parties cant come to agreement - may decide to get solicitors who will 1st try to reach settlement - even when court proceedings have started, lawyers for parties will often continue to negotiate on behalf of clients (reflected in high number of cases settled out of court)
once lawyers involved, there's cost element - longer negotiations, high cost
worrying aspect is number of cases which drag on for years and to end in agreed settlement literally 'at door of court' on morning trial is due to start - a situation which woolf reforms/ADR tries to avoid
when agreement has been reached, best for terms of agreement to be written down so now future misunderstanding
advantages/disadvantages:
ads:
quick and straightforward
no cost
parties in control
disads:
parties may be unwilling to negotiate
involving lawyers can be expensive
it may fail requiring court action as last resort
conciliation
decision made by parties with help of neutral conciliator who plays active role
this can take place before court proceedings have been started or at any stage up until trial - involves neutral trained person (conciliator) who helps parties reach compromise solution
role of conciliator is to consult with each party and see how much common ground there is between parties - will explore position with each side looking at needs & identifying
main difference between mediation and conciliation is that the conciliator will play active role in process and be expected to suggest grounds for compromise & possible basis for settlement
conciliation is carried out in private - parties facet to face for conciliation or prefer conciliation to meet with each side privately and then convey each party's wishes to other companies who are used to negotiation contracts with each other are likely to benefit from this approach
this approach avoids adversarial conflict of courtroom and winner/loser result of court proceedings -with conciliation everyone wins
doesnt always lead to resolution and if issue is not resolve party can still start/continue court case
advantages/disadvantages:
ads:
cheaper than a court case - parties have some control
can include agreements about future business
outcome need not be strictly legal (based on compromise and commercial common sense)
method also makes it easier for business to work with each other in future
disads:
conciliator may force resolution
may not lead to settlement
not always binding
mediation
decision is made by parties with help of neutral mediator - process where neutral trained mediator helps parties to reach a compromise solution. role of mediator is to consult each party and see how much common ground there is between them - need to explore position with each party looking at needs and carrying offers between (whilst maintaining confidentiality).
mediator will not usually tell parties their own views of merits of dispute (part of role to act as facilitator) they can be asked for opinion of merits and in this case mediation become more evaluation exercise which aims at ending dispute. mediation is only suitable if some hope that parties can co-operate - can take in different forms and parties can choose exact method they want - important point is that parties are in control
formalised settlement conference: formal method of mediation - involves mini trial where each side presents its case to panel composed of decision making executive from each party in dispute and neutral party
once all submissions made, executives with aid of neutral adviser - will evaluate two sides positions and try to come to agreement - if cant agree then neutral advisor will act as mediator between them
if the whole matter isnt resolve - type of procedure may be able to narrow down issues so that if cases goes to court it wont take long to resolve
advantages is that decision needs not be strictly legal one, more likely to be based on commercial common sense and compromise - method will also make it easier for parties oto continue with each other and avoids adversarial nature of court room
mediation service: main commercial mediation service is Centre for dispute resolution (1991) - by using this it can save several thousands of pounds in court costs - typical cost of mediation is about 1,000-1,500 a day
mediation services which are aimed at resolving smaller disputes e.g. between neighbors - for example west kent mediation. offers free service which will try to help resolve disagreements between neighbors arising from matters. service is run by trained volunteers who will not be biased or make judgements - usually visit party who has made complaint to hear their side of the matter then if party agrees speak to other side of - if both parties are willing then mediator arranges meeting between them in neutral place (they can with draw at any time)
online dispute resolution gains popularity in view of number of transactions completed over internet
advantages/disadvantages:
ads:
cheaper than court case
parties in control
incl agreements abt future business
disads:
may not lead to settlement
not binding
one party may not engage in process
arbitration
the decision is made by arbitrator, this method is another way of resolving a dispute without the need for a court case
this is a voluntary submission by the parties of their dispute to the judgement of some person other than a judge
initial agreement will usually be in writing - indeed arbitration act 1996 only to written arbitration agreements - precise way in which arbitration is carried out is left almost entirely to the parties agreement
agreement to arbitrate: arbitration becoming increasingly popular in commercial cases - agreement to go to arbitration can be made by parties at any time - whether before dispute arises or when it becomes apparent
any commercial contracts include scott v avery clause - where original contract sets out that in event of dispute it will be settled by arbitration - alternatively an agreement to go to arbitration can also be made after dispute arises
where a contract contains such a clause - arbitration act 1996 states that the court will normally refuse to deal with any dispute, matter must go to arbitration as set out in the contract
in consumer contract - rules are different where amount falls within small claims track. in this case, consumer may choose whether to deal with any dispute, the matter must go to private arbitration or to insist that the case be heard in small claims track
arbitrator: s15 of arbitration act 1996 - parties are free to agree on number of arbitrators, so that a panel of 2 or 3 may be used or there may be a sole arbitrator - if parties cannot agree on number then act provide that only 1 should be appointed
also sates that parties are free to aree on procedure for appointing - most arguments will either name and arbitrator or provide method of choosing one - in commercial contracts provided that president of appropriate trade organisation will appoint arbitrator
arbitrator will be someone who has expertise in field involved in dispute - if dispute involve a point of law then parties may decide to appoint lawyer - if there is agreement on who to appoint an id what way, last resort court can be asked to appoint appropriate arbitrator
arbitration hearing: procedure is left to agreement of parties in each case, so that there are many forms of hearing
some cases parties may choose paper arbitration - two sides put all points they wish to raise into writing and submit with any relevant docs to arbitrator - decision is made solely on documents
some parties may send all documents to arbitrator but before decision is made both parties will attend a hearing at which they can make oral submissions to support their case
where necessary, witnesses can be called to give evidence - if witnesses are called, arbitration act allows of use of court procedures to ensure attendant of those witnesses
date time and place of arbitration hearing all matters for parties to decide in consultation with arbitrator - gives greater degree of flexibility to proceedings, parties can choose what's most convenient
the award: decision made by arbitrator is binding - even be enforced through courts if necessary
award is usually final, though it can be challenge in court on grounds of serious irregularity in proceedings on point of law
Tribunals
these operate alongside court system and have become an important part of legal system - many tribunals were created in second half of 20th century - created in order to give people a method of enforcing their entitlement to certain social rights. unlike ADR, where parties decide not to use courts, parties in tribunal cases cannot go to courts, the parties in tribunal cases cannot go to court to resolve dispute
the roles are to enforce rights that have been granted through social and welfare legislation e.g. right to mobility allowance for those who are too disabled to walk more than very short distance/right to payment if one is made redundant from work/right not to be discriminated/rights to immigrants to have claim for political asylum heard
as they were set up as welfare state developed - mean that new developments resulted in creation of new tribunals - led to 70 different types
whole system was reformed by tribunal courts and enforcement act 2007 - created unified structure for tribunals with first tier for cases at first instance, upper tribunal to hear appeals
first tier tribunal: operates in 7 chambers/divisions - social entitlement/health education and social care chamber/ war pensions/ regulatory chamber/taxation chamber/ land property and housing/immigration chamber
as well as this there is one tribunal that still operates seperately from first tier - employment tribunal
upper tribunal: divided into four chambers - admin appeals chamber/tax and chancery/ lands chamber/asylum and immigration chamber
from here there is a further possible appeal route to court of appeal and from here a final appeal to supreme court
employment tribunal: hears wide variety of cases connected with employment e.g. unpaid wages/holiday pay/redundancy pay/unfair dismissal/ equal pay/discrimination/whistle blowing
to start a claim it is necessary to fill in form as to what the claim is about - form has to be sent to tribunal office within 3 months of even claimed for - 3 month limit is much less than for court cases where time limit can be as much as 6 years for contract cases - tribunal office will send copy of form to employers - must respond if they want to defend
composition: case in first tier are heard by tribunal judge - for some types of case two lay members will sit with judge to make decision - these lay members will have expertise in particular field
in employment tribunals there are also 2 lay members, these will usually be one person from an employers organization and one from an employees organization
advantages & disadvantages
ads:
cheaper than courts
cases hear more quickly than in courts
informal
heard by experts
disads:
more formal than ADR
may be delay in hearings
public funding not available
may be at disadvantage if other side has lawyer