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adr - Coggle Diagram
adr
Mediation
neutral trained person helps the parties to reach a compromise - acts as a facilitator, shuttling between parties to put forward points and opinions
parties have control over the process, so they can stay as long as they wish and can withdraw at any time - mediator will not offer an opinion to either side unless asked to
a successful mediation on both parties embracing concept and actively participating - successful = both parties reach a compromise and agreement acceptable to both
each side presents its case to a panel, composed of a neutral party plus a decision making executive from each party in the dispute
once all submissions made, executives, with the help of the neutral advisor will evaluate the two sides and try to come to an agreement - if cannot agree, the neutral adviser will act as a mediator between them
this procedure ultimately narrows down issues, even if it goes to court, it will not take long
Arbitration
where both parties voluntarily agree to let their dispute be left to the judgement of a neutral arbitrator or a panel of arbitrators - will normally have experience in the field of the dispute
the agreement providing for arbitration will usually be in writing and will be contained in the initial contract between the parties which will be made before any dispute arises (arbitration clause is called Scott v Avery - Arbitration Act 1996 provides that a court will normally refuse to deal with a dispute when there is a Scott v Avery clause)
initial agreement will either name an arbitrator or provide a method for choosing one - if there is no selection procedure, a court can appoint an arbitrator - it is common to find a Scott v Avery clause in building contracts
the parties will agree the procedure for dealing with the dispute which can range from a ''paper' arbitration - where all the points are set out in writing and the arbitrator makes a decision based on this - a formal court-like hearing - the date, time and place are decided by parties with arbitrator - formal hearing held in private
legal representation is not always necessary - saves the parties the expense of employers lawyers, and is likely to be less confrontational - arbitrator's decision is called an 'award' and is final and binding on the parties - award can only be challenged if there is a serious irregularity in the proceedings or on a point of law
preliminary matters
a claim on an employment issue has to be brought within three months, less one day, from the event (a dismissal)
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claim must set out detailed reasons for the action and must be filed with the tribunal within the time limit
unlike court claims, there is no fee - claim is passed to employer who will have the opportunity to make a comment
the hearing
held in individual tribunal rooms - panel made of 1. judge specialising in employment law running the proceedings, 2. one person representing the employer's organisation and 3. one person representing the employee's organisation
if a preliminary hearing is needed, it takes place before a judge sitting without panel members - in full hearing, evidence is taken on oath
open to public, rarely publicised, quite short as most issues are identified beforehand and panel would have read papers, a collective decision of the panel will subsequently be issued in writing
Negotiation and ADR
face to face talking, writing, phone, email - settle the dispute in the easiest and least confrontational way possible
attempt to come to an agreement or settlement (can be verbal or formally set out in writing) - no cost but lawyers will involve cost
even if original negotiations are unsuccessful and court proceedings are issued, it can take place right up to a court hearing
Conciliation
similar to mediation but conciliator plays a more active role, discussing issues with both parties and suggesting grounds for compromise or settlement - parties still have control over process and may withdraw at any time
as with mediation, both parties must agree to a final compromise and the process may not lead to a resolution, especially if one or both sides are fixed in their position
appeals
either side may then appeal within 42 days of tribunal decision on a point of law - further appeals can be made to the court of appeal and supreme court but only on a point of law with permission from Employment Appeal Tribunal