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Flashcards

ADR

Libby Simmons Law AS level Inglês 38 flashcards

Flashcards do conjunto (38)

  1. 1What does Alternative Dispute Resolution cover?The various ways to settle a civil dispute otherwise than through the normal court process.
  2. 2What are some of the disadvantages relating to litigation highlighted in the Access to Justice Report 1996?-Cost
    -Delay
    -Complexity
    -Adversarial
    -Unjust
    -Oral evidence
  3. 3What happened in Buckley V Dalziel [2007]?About trees, cost the unsuccessful claimant £80,000 in fees.
  4. 4How have the CPR 1998 encouraged ADR?Allowing judges to:
    -1 month stay
    -Sanctions
  5. 5What case shows a party having to pay the other party's fees of £100,000 after they refused ADR?Dunnett V Railtrack [2002]
  6. 6Talk about negotiation.-Often the starting point
    -Good for small scale neighbour disputes, returning faulty goods.
    -Can become more formal by seeking advice from CAB or a solicitor, adds weight, but time and money can escalate.
    -Success rests with the parties.
  7. 7What are the advantages of negotiation?-Private
    -Consensual
    -Amicable
    -Cheaper than lit.
    -Quick
    -Informal
    -"Weight" can be added
  8. 8What are the disadvantages of negotiation?-No guaranteed solution
    -Waste of time if no solution
    -Not binding
  9. 9What is the mediators role in mediation?-Acts as a 'go-between' who consults separately with both parties to see their needs and how much COMMON ground there is.
  10. 10What is the basic point of mediation?-Working together to go forward, not focusing on who was right or wrong in the past.
    -Decisions can be made about what happens in the future, something the court cannot do.
  11. 11What isn't the mediators role?-To tell parties their own views about the dispute.
    -Not to make judgements.
    -Determine outcomes.
  12. 12How can mediators control the process?-Placing pressure on the 'weaker' side (inequality of bargaining power).
    -Unconscious bias.
  13. 13What does S.13 Family Law Act 1996 do in order to encourage greater use of mediation?-Allows judges to pass an order on parties to a divorce case to attend mediation since April 2011.
  14. 14What is some criticism relating to encouraging parties to use mediation?-Half-hearted
    -Halsey [2004]
    -Wasting time and money.
  15. 15Name and discuss a mediation service. (international)-CENTRE FOR DISPUTE RESOLUTION
    -Set up in London 1990 as an independent neutral organisation.
    -Wide variety
    -8,000 disputes annually. 85%-90% result/sig progress.
    -Up to £75,000 =£1000 split, cheaper than lit.
  16. 16Talk about Online Dispute Resolution.-Steadily growing idea
    -Ease of access
    -Increase overall access to justice
  17. 17What are some advantages of mediation?-Consensual
    -Amicable
    -Private
    -Cheaper
    -Quicker
    -Professional bodies
    -Parties keep control
    -Success rate 68%-90%
  18. 18Name the disadvantages of mediation.-No guarunteed solution.
    -Waste of time if no solution.
    -Pressure from mediator.
    -Delays/prevents day in court.
    -Article 6
  19. 19What does conciliation involve?-Similar to mediation as there's a neutral third party BUT conciliator plays a more active role by suggesting grounds for compromise and a possible basis for settlement.
  20. 20What is conciliation popular with & what is an organisation that specialises in the area?-Employment
    -Advisory, Conciliation and Arbitration Service (ACAS)
    -Unfair dismissal where trained officers will contract parties and attempt to resolve their dispute to save a tribunal.
  21. 21What is another example of a conciliation service?-Association of British Travel Agents (ABTA).
    -In disputes between tour operators and consumers, offers impartial conciliation to resolve issue.
  22. 22What are the advantages of conciliation?-Cheaper
    -Consensual
    -Amicable
    -Quicker
    -Privacy
    -3rd party has more active role increasing the chance of solution.
    -Professional services available.
  23. 23What are the disadvantages of conciliation?-No guarunteed solution.
    -Waste of time if no solution reached.
    -Outcome depends on the skill of the conciliator.
  24. 24What is arbitration?-ADJUDICATIVE method because the parties don't decide the outcome.
    -Arbitrator will come to a legally binding decision for them.
  25. 25What is arbitration governed by & involve?-Arbitration Act 1996
    -Involves parties voluntarily agreeing to have their dispute privately decided by a trained arbitrator.
  26. 26How is the legally binding result given?-In writing, but the manner in which the arbitration is carried out is basically left up to the parties.
  27. 27Why is privacy attractive to companies?-So that business secrets aren't made public and thus not shared with competitors.
  28. 28Why can costs prevent problems to individuals?-If they are in a dispute with a business ( INEQUALITY OF BARGAINING POWER)
  29. 29What is the Scott V Avery [1856] clause?Clause in the original contract that states that in the event of a future dispute, their resolution method will be arbitration.
  30. 30What can the parties agree on regarding the arbitrator?-The number of arbitrators e.g panel or single person.
    -If they can't agree, then a single arbitrator will be used.
  31. 31What are the two types of arbitration procedure that the parties can choose from?-PAPER, both parties put all points they wish to be considered down and submit this to the arbitrator.
    -HEARING, where verbal submissions can be made in support of their case. Where necessary witnesses can be called to give evidence.
  32. 32How can arbitration be seen as a flexible procedure?Parties must decide...
    -Mutually convenient date, time and place for everyone involved.
  33. 33What is the award?-The decision made by the arbitrator and is legally binding.
    -Decision can be challenged in court on the grounds of serious irregularity in the proceedings or on a point of law.
    Kaneria V England & Wales Cricket Board [2014].
  34. 34What are the advantages of arbitration?-Privacy
    -Guaranteed solution
    -Professional
    -Flexible
  35. 35What are the disadvantages of arbitration?-Cost
    -Loss of control as arbitrator's decision is binding.
  36. 36What could be considered both advantages and disadvantages of arbitration?-Right to appeal
    -Scott V Avery clauses
  37. 37What are the overall pro's of ADR?-Generally quicker
    -Relatively informal
    -Usually cheaper
    -Forward thinking
    -Consensual non adversarial
    -Private
    -No need for legal rep.
    -More chance of maintaining relationships.
    -Helps to narrow down issues
    -Less intimidating and stressful
  38. 38What are the cons of ADR?-No guaranteed result (except arbitration)
    -Outcomes not necessarily legally enforceable (except...)
    -Settlements can be lower
    -Inequality of bargaining power
    -Lawyers can be used, more costs and formality
    -May still need to go to court (pay twice)
    -Appeal rights limited (arb)
    -People want their day in court (Art6)
    -Success rests with parties (arb)
    -No legal funding.

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AS level Law (ADR LA1) FlashCards sobre ADR, criado por Libby Simmons em 28-04-2017.
Criado por
Libby Simmons
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