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Adjudicative vs non-adjudicative?
Adjudicative = an (independent) 3rd party imposes the decision.
o Adjudicative processes:
Expert Determination (ED)
o Adjudication (used in construction industry)
o Ombudsman (although some don't make decisions)
o Competition Authority
[[key ones to look for in MCQ options: arbitration, litigation, ED,
Non-adjudicative = parties themselves make the decision, process aimed at enabling parties to reach an agreement settlement.
o Non-adjudicative processes:
Mediation (the 3rd party does not make the decision, but facilitates the parties in seeking a settlement)
o Expert evaluation
Early Neutral Evaluation
Conciliation (eg in employment)
Advantages of ADR processes in general
Costs: (for mediation/negotiation, less so for arbitration).
Parties have Control of process:
o Control of costs (eg can choose 1 arbitrator)
o Control of outcome in non-adjudicative processes (negotiation/mediation)
o In arbitration, control over who the arbitrator is.
Speed of getting to point of resolution
Once within process, eg in negotiation can impose own timetable, in control of how long it might take. Arbitrator, parties in control of timetable.
Confidentiality/privacy (litigation is public)
Maintaining business relations/long-term relationships , as ADR less confrontational.
Maintain reputation (keep the dispute private)
o Procedural flexibility
Greater range of remedies, ???
o Flexibility in potential outcome, not black-and-white as in court.
Avoid litigation risk (court is all or nothing)
Variety of claims: can make submissions on any matters, not only restricted to points of law.
Simpler procedures and strict rules of evidence do not apply
Can have flexible solutions which go beyond the strict parameters of the original dispute (CF in court, jurisdiction only to make orders within confines of the issues raised by the statements of case).
Arbitration agreements are enforceable internationally, New York Convention 1958,
-ADR procedures agreed before a dispute arose may be inappropriate for resolving the actual dispute that arises.
-Where parties agree to ADR after dispute arises, might find it difficult to agree the details of the procedure to be followed (eg identity of an arbitrator/mediator,
payment of fees, rules to govern the ADR etc).
-Arbitrator fees may be more expensive than litigation.
-A party with a strong case may have to abandon their actual rights if the ADR
procedure is to achieve anything.
-Can be expensive and time-wasting if one party is not genuine in their participation.
-ADR sometimes unworkable if there are multiple parties.
-Enforcement of the amount determined is easier in litigation than ADR (other than arbitration).
-Certain remedies only a court can provide.
ADR and case management, courts encouraging ADR
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