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Alternative Dispute Resolution - Coggle Diagram
Alternative Dispute Resolution
Negotiation
The Facts
Resolve disputes between parties themselves
Commonest and simplest form of ADR
Directly negotiate with other party
Before solicitors/courts/ADR
Solicitors may negotiate on behalf of the client
Used at any stage, even during court proceedings
Not enforceable by courts
Neighbourhood disputes/injury at work
Advantages
Cheap
Quick
Private
Informal
Ongoing
Disadvantages
Lack of legal expertise
Imbalance of power
Can be costly if solicitor is involved
Lack of certainty
Hostility
Enforceability
Mediation
The Facts
The parties are encouraged to come to their own settlement
Mediator is a facilitator (a person or thing that makes an action or process easy or easier)
Helps parties reach a compromise
Expert - Centre for Effective Dispute Resolution (CEDR)
Parties have control over the venue and date
Doesn't impose a solution
Talks to both sides/neutral go between (they are impartial)
Sometimes the parties meet face to face
Meditator will find common ground/keeping confidentiality/ doesn't offer an opinion
Not legally binding - still resort to litigation
Divorce/Child contract/ settlements/ neighbour disputes
Examples
NHS Trusts
Family Mediation
CEDR
Law Works - Charity - offers free mediation to those who can't afford it.
Advantages
Speed and convivence
Faster than Civil Courts 3.5 months compared to 14.5 months waiting
No complicated rules of evidence
Maintain good relations
Experts (CEDR)
Cheap - saves over 55% compared to court
Parties are in control avoid disputes in the future
Joseph Rowntree Foundation - 8/10 said some issues, 4/10 said all of the issues, reduces conflict, less bitterness, agreement stood the test of time
Disadvantages
The party may not be 'strong enough' to get very much from it/imbalance of power/intimidation/manipulated
Lack of legal expertise - complicated point of law
it is enforceable
The decision is not legally binding
Family Law Association said 'rogues charter for unscrupulous husbands'
Arbitration
The Facts
Independent arbitrator makes a binding decision
Arbitration Act 1996
Private means of settling a dispute
Arbitrator is a recognized expert in the particular field of dispute
Parties choose and agree on an arbitrator
Usually in Contract cases (Scott v Avery clause)
Choose arbitrator panel
Paper or hearing
Commercial arbitration - disputes arising from the construction of the Channel Tunnel and London Underground
ABTA
Arbitration Act 1996:
S.1 - fair resolution - without delay or expense
S.3 - arbitrator obliged to avoid delay and expense
S.5 - in writing
Advantages
Control/choice/quick
binding decision
Expertise ane experience e.g surveyor in building disputes
Private - not published to the media
Informal - no rules of evidence
Tailor made
Freed the court from dealing with disputes - creation of new Wembley stadium
Disadvantages
Costly - Queen's Council-surveyor - hourly rate
Complex procedure
Appeal to High Court - defeats purpose/prolongs process and adds to cost
ABTA - the amount of money awarded is questonable
Arbitrator is not a judge - what if decision is regarding a difficult point of law
No precedent - inconsistency
Conciliation
The Facts
3rd party plays a more active role in proceedings
Conciliator (a person who acts as a mediator between two disputing people or groups) is agreed upon and paid by both parties
Parties determine time/date/process of meeting
Conciliator suggests grounds for compromise
Allows parties to identify the main issues
Best option for reaching a settlement
ACAS (advisory conciliation and arbitration service) resolved disputes between trade unions and employers
Unfair dismissal cases
Each side is told what was said
Not legally binding so will still go to litigation
Cannot be used as evidence (without prejudice)
ACAS (advisory conciliation and arbitration service)
Individual conciliation - unfair dismissal, legally enforceable and cannot take the case to employment tribunal
Advantages
Good terms
Private
Conciliators offer expertise/pro-active - suggest and advise the parties/security of advice from a neutral source
ACAS conciliators - experts in employment law
Disadvantages
Imbalance between employer and employee especially if employee has no legal rep
unequal bargaining power - 1 side dominates
No precedent
Dickens 1885 - awards are higher at employment tribunal