Karteikarten
ADR
Karten in diesem Stapel (17)
- 1What is ADR?Alternative dispute resolution is a broad concept that refers to;
Alternative - different from the court processes
Dispute - more specific than a conflict of interest, but not as detailed or focused as a case
Resolution - looks to get a broad settlement but not full reconciliation of justice - 2Where do the origins of ADR come from ?1. Confucian ideology of the state opposing litigation
2. Islamili Muslim Conciliation board
3. Buddist influence in the Guantama Siddhartha's practices of mediation
= the origins of ADR come where there has been a conflict between the processes of adjudication and settlement - in practice, judges urge parties to settle but will not make their judgements
- Since only a small proportion of conflicts become disputes, and an even smaller number of dispute send in court, ADR has developed as a way to settle these disputes without the judgments in court. - 3English precedent of ADR- The Anglo saxon chronicles recorded the process of mediation
- Theodore of Tarsus mediated the diputes between Northcumbrians and Mercians in 679
- In the Normal era, Edward the confessor was a notable sage mediator
- 14th centery Britian also shows forms of ADR; e.g the actions before court of commons pleas met with defence that settlements had been made per mediacoinmen facta
- there was also records of love days where strict justice was suspended
- Medieval period used ADR to resolve trade issues and employee disputes - 4ADR in the US Antecedents- Adjudication developed in the USA in a context where there was a highly individualised society
- San Francisco community board advocated for a communitarian vision of justice and self goverment in 1970
- Knight of labour courts offered a secular version of justice as part of the workingmen's association movement in late 19th century
= these gave way to ADR - 5What are the methods of ADR ?- ADR is defined as a broad system of methodologies that parties can use to relvoe legal or quasi legal disputes without litigation
The methods include:
- Mediation
- Arbitration
- Med-Arb
- negotiation
- As a last resort, litigation. - 6What is mediation?- this is a non binding process
- it is where parties will work with a mediator as the third party, which will help them reach a settlement
- mediators do not decie the case, but aim to facilitate a consentual agreement
- both parties must agree to the setllment
- mediation is a good ADR method since it can suit the parties i.e it can take a very low key approach, or a very direct proactive role making suggestions and interfering
- mediation can be turned into arbitration if the parties decide to do so = this makes the mediator convert into an arbitrator which now has the ability to make a binding decision. - 7What is Arbitration ?- Arbitration is a method which contains one or more impartial persons to create a final binding decision
- the parties of this quasi-litigation process may create a contract to limit the issues of the dispute, making it more specific - 8What is Med-Arb?- this is a hybrid combination which requires a mediator to attempt to solve the dispute, then if the mediator fails he attempts as an arbitrator
- it can also be a combination of binding and non binding outcomes - 9What is negotiation?- Negotiation is the core of most ADR processes
- It is where the parties set out what they want and what they are trying to reach, in order to negotiate an agreement through compramising
- this can be done by talking to each other or through writing (provided that there is no court order preventing this) - 10What is litigation?- this is a term used to describe proceedings initiated between 2 parties to enforce or defend a legal right
- litigation is usually settled by an agreement between the 2 parties but must be done in front of a judge or jury in court
- litigation is not a lawsuit; in fact, it includes all the activities before, during and after the legal processes - 11What are the factors that had lead to a growth in ADR1. Access to justice movements
2. Legal reforms
3. Resistance to adversarial processes
- mediation mainly with a dissolution in the judicial system ; it is expensive, has many delays and there is a high burden on courts for minor issues
- citizens want to feel a culture of empowerment and settlement, and ADR does this by providing a greater psychological insight to their dispute - 12What factors lead to ADR to grow in the UK?1. popular movements in 1970 - access to justice and law reform movements
2. Lord Woold remarks that there is a need to shift to ADR rather tan the assertive judicial system that leads to late settlements
3. Family law act 1996 part 2 section 16 - outlines directions with respect to mediation
4. Part 36 of civil procedure rule 1998 encourages early settlement of minor civil cases
5. Children and Family act 2014 also provided mandatory references to mediation in relation to family break up - 13What are the types of mediation? & what does Fuller state about the quality of mediationLon Fuller states that the central quality of mediation is its ability to re-orentate the parties together not through arbitrary rule imposing and delays, but through making them see a new perspective of their dispute and their relationship = and this is what will settle disputes
1. facilitative mediation
2. Narrative mediation
3. Directive mediation
4. Evaluative mediation - 14What is facilitative mediation?- it is the original style of mediation that seeks to facilitate the negotiation process between parties
- the goal is to create long lasting agreements
- sometimes uses exerts and side meetings to help the negotiation - 15What is narrative mediation?- this is based on the narrative theory by Winslade and Monk
- It is a method that draws attention yo how we narrate out issue and the relationship with the opposing party
- narrative approach seeks to explore how the conflict occurred, and what influence it will have on the relationship between the parties if an agreement is not met - 16What is directive mediation ?- this is a cut to the chase, direct approach to solving the dispute
- it is a form of direct decision making by the mediator - 17Evaluative mediation ?this is the process of evaluating the dispute in terms of what the court would have determined
- evaluative mediation is a processes modelling that of a court settlement
- it predicts what a judge would have done for that dispute
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- Beschreibung
- Karteikarten am ADR, erstellt von Amna AlNasser am 16/05/2016.
- Erstellt von
- Amna AlNasser
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