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Alternate Dispute Resolution Notes

LPC Law Notes > Civil Ligitation Notes

This is an extract of our Alternate Dispute Resolution document, which we sell as part of our Civil Ligitation Notes collection written by the top tier of Cambridge And Oxilp And College Of Law students.

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Arbitration Arbitration vs Litigation vs Mediation Arbitration

Litigation

Mediation

Definition

The procedure by which disputes are resolved by an independent third party.

The procedure of going to court to settle a dispute in an adversarial process.

The process whereby an independent third party facilitates negotiations.

Decision

Binding and can be legally correct (ss.45, 52 & 69).

Binding and legally correct.

Made by the parties mediator has no input.

Rules

Mandatory rules listed in Schedule 1

Covered by the CPR.

None unless decided by parties.

Enforcement Enforceable decisions (s.66) as well as international enforcement (New York Convention)

Enforceable (CPR 70-73)

If agreement is recorded in a Consent Order it can be enforceable.

Other Advantages

- Choose the arbitrator often a specialist or expert

- Rules of precedent
= predictability

- Cheaper if settlement is reached

- Choose the procedural rules

- Judge considered documentary evidence and experts/witnesses

- Quicker, flexible and informal

- Private hearing and confidentiality (avoids publicity)
- Commercial and non-legal solutions Other Disadvantag es

- Legally binding and - Commercial solution correct decision
- Collaborative solution
- Confidentiality

- Costly (arbitrator, venue, agreement negotiation, court applications etc.)

- Public trial

- Cannot join third parties without consent

- Costly and time consuming

- Lack of interim judgments e.g. summary judgments

- Non-adversarial; win-win result

- No control over procedure or rules

- Increase costs if unsuccessful
- No guaranteed solution or engagement in process

- Mediator may not be an expert
- Adversarial process
- damages relationships

Responding to Claim Forms If the claimant has filed a claim form then the defendant should file an acknowledgement of service so that the claimant cannot apply for judgment in

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