Law- elements of ADR

negotiation meaning

settling disputes between people or businesses by coming to a mutual agreement or settlement

how can a negotiation be done

face-to-face, writing, by phone or email

how can negotiation be conducted

by parties themselves, their represntations or their laywers (or a combination of those)

what can the costs of negotiation be

typically free if it is carried out by parties, however if laywers are involved there will be a cost

what can happen even if original negotiations are unsuccessful and court proceedings are issued

negotiations can still take place up to court hearing

example of negotiation used in law

when parties in a contract dispute engage in discussions to settle their differences by agreeing on revised terms, such as payment schedules or deliverables, before escalating matters to court

what is mediation in law

when a neutral person (mediator) helps parties to reach a compromise

what happens when parties have a mediator

parties seperated into different rooms/locations and mediator acts as a faciliator, shuttling between parties to put forward points and opinions

who has control over this process and what does this allow them to do

parties do, meaning they can stay as long as they wish and withdraw at any time

what does successful mediation depend on and what is hoped to be achieved

both parties embracing concept and actively participating, eventually it is hoped that each party will reach a compromise and agreement acceptable to both

what must parties do before court proceedings

show they have attempted this process

example of mediation used in law

in family disputes over kids and financial issues

whats the name of a more formal method of mediation

mini trial

what does a mini trial involve (3 points)

each side presents its case to panel, composed of a neutral party plus a desicion making executive from each party in the dispute. once all submissions have been made, the executives (with help of adviser) evaluate two sides’ positions and try to come to agreement. if executives can’t agree, neutral adviser will act as mediator between them

what happens if the whole matter is not resolved (mini trial)

even if whole matter is not resolved his type of procedure may be able to narrow down issues so that if the case does go to court, it will not take so long

what is concilation in law

similar to mediation, but conciliator plays more active role

how does a conciliator play a mopre active role than a mediator

a conciliator discusses issues with both parties and suggests grounds for compromise or settlement

who has control over the process

parties, just like mediation and they can do the same things (withdraw etc.)

what must both parties end up doing in this process

they must agree to a final compromise (like mediation) and the process may not lead to a resolution, especially if one or both parties are fixed in their position

what is an example of conciliation being used in law

ACAS (Advisory, Conciliation and Arbitration Service) which is a conciliation service

what does ACAS do? (2 e.gs)

tries to encourage parties in an employment dispute to reach a settlement before a claim can be issued in an employment tribunal. it also gets involved in industrial disputes- e.g if a trade union calls a strike action, ACAS will attempt to conciliate between parties to reach a compromise