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ADR > 01 - Overview ADR > Flashcards

01 - Overview ADR Flashcards

1
Q

ADR

Advantages

A 
Involvement = Empowerment
Choice = Adjudicative; Non Adjudicative
Control = Issues; Procedure; Information; Settlement
Neutral 3P = Perspective; Re-evaluation
Confidential = NOT Public; Without Prejudice
Maintain = Reputation; Relationship
Speed = Time; Paper Based
Cost Effective
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2
Q

ADR

Disadvantages

A

Expectation
Non Disclosure
Delay = Time; Litigation; Pre-action (Injunction; Disclosure)
Cost = ADD Litigation

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3
Q

NON Adjudicative

WHAT

A

Informal = Explore Options
Non Binding = Decision; Settlement
Parties Approve Settlement

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4
Q

NON Adjudicative

TYPES

A

Offers to Settle
Negotiation
Mediation
Early Neutral Evaluation

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5
Q

Adjudicative

WHAT

A

Formal Procedure
Binding = Decision; Settlement
Limited = Challenge; Appeal

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6
Q

Adjudicative Options

TYPES

A

Expert Determination
Adjudication
Arbitration

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7
Q

Offers to Settle

TYPES

A

Open
Without Prejudice
Part 36

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8
Q

Part 36

Defendant NOT Accept

A 
Defendant PAY = Costs; Interest @ 10%
Additional Damages
10% < £500k
5% £500k < > 1m
Total = £75k
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9
Q

Part 36

Claimant Accept

A

Defendant PAY Costs < Date of Acceptance

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10
Q

Part 36

Claimant NOT Accept

A

Defendant PAY Costs < Date of Acceptance

Claimant PAY Costs > Date of Acceptance

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11
Q

Negotiation

WHO

A

Lawyers = Representative

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12
Q

Negotiation

Settlement Agreement

A

Enforceable Contract

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13
Q

Negotiation

Advantage

A

Reality = Entrenched View; Strength; Weakness
Issues = Non Legal
Creative = Settlement
Non Binding = Starting Point; Accept OR Reject

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14
Q

Negotiation

Disadvantages

A

Preparation
Strategy OR Tactics = Strong; Weak
NO Result

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15
Q

Mediation

WHO

A 
Mediator = Neutral
Lawyers = Representative
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16
Q

Mediation

Settlement Agreement

A

Memorandum of Agreed Terms

Enforceable Contract

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17
Q

Mediation

Advantages

A

Reality = Entrenched View; Strength; Weakness
Issues = Non Legal
Creative = Settlement
Non Binding = Starting Point; Accept OR Reject

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18
Q

Mediation

Disadvantages

A

Preparation
Strategy OR Tactics = Strong; Weak
Mediator = SKE
NO Result

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19
Q

Early Neutral Evaluation

WHO

A

Evaluator = Neutral / Expertise

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20
Q

Early Neutral Evaluation

WHEN

A

Contract Clause = Dispute MUST Evaluation

Request

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21
Q

Early Neutral Evaluation

Advantages

A

Technical Issues
MAY Offer = Without Prejudice; Part 36
MAY Assist = Mediation; Negotiation

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22
Q

Early Neutral Evaluation

Disadvantages

A

Preparation
Evaluator = SKE
NO Result
NOT Facilitative

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23
Q

Expert Determination

WHO

A

Expert

Specialist Field = Accountant; Engineer

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24
Q

Expert Determination

Advantages

A

Contract Clause

Technical Dispute

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25
Expert Determination | Disadvantages
NO Control = Decision; Reason NO Creative Binding Limit = Challenge
26
Adjudication | WHO
Adjudicator | Specialist Field = Accountant; Engineer
27
Arbitration | WHO
Tribunal = Independent; MAY Expertise
28
Arbitration | Advantages
Contract Clause Industry Process Developed Procedure
29
Arbitration | Disadvantages
NO Control = Decision; Reason NO Creative Binding Limit = Challenge; Appeal
30
Hybrid Processes | WHAT Mediation > Arbitration
Binding Decision IF NO Settlement
31
Hybrid Processes | Advantages
Mediation Window MUST Dispute Resolution Enforceable Contract Cost Effective
32
Hybrid Processes | Disadvantages
Non Disclosure Arbitrator = Mediator Confidential Information
33
Litigation | Advantages
MUST Consider ADR Developed Procedure = Clear Court Power = Directions; Orders; Sanctions Enforce Decision
34
Litigation | Disadvantages
``` Adversarial Complex = CPR; Evidence NO Control = Decision; Reason NO Creative Risk = Reputation; Relationship Speed Cost ```
35
ADR Selection | Considerations
``` WHO = Parties; 3P; Lawyers WHAT = Legal Merits; Jurisdiction HOW = Binding WHEN = Speed; Costs ```
36
ADR NOT Suitable
Case Strength = Issues; Merits Complexity Court Power = Injunction; Disclosure Criminal Allegations
37
ADR Contract Clause | WHAT
Dispute MUST Use ADR
38
ADR Contract Clause | MUST
Clear AND Certain | Reasonable
39
ADR Contract Clause | Breach
Sue for Damages
40
ADR Contract Clause | Court Powers
``` Stay Proceedings Directions Orders = Give Effect Sanctions Enforcement Costs ```
41
ADR Contract Clause | Court Factors
Compliance = Overriding; Pre-action ADR Appropriate ADR Cost
42
PD Pre-action Conduct | WHY
Settle Dispute < Proceedings | Enable Case Management
43
PD Pre-action Conduct | Parties MUST
Consider ADR | Exchange Information = Consider Position AND Informed Decision
44
PD Pre-action Conduct | WHEN
Consider ALL Times
45
PD Pre-action Conduct | STEPS Claimant
Letter Before Claim = Claim (Issues; Remedies); ADR Proposal
46
PD Pre-action Conduct | STEPS Defendant
Letter of Response = Accept; Deny; Dispute (Whole; Part); ADR Proposal (Agree; Disagree; Reasons)
47
Overriding Objective | Court MUST
Deal Cases Justly Proportionate Cost
48
Active Case Management | WHAT Court
Encourage ADR Decide Issues Set Timetable
49
Costs Management | WHAT Cases
Multi-track AND Fast-track Cases
50
Costs Management | WHEN
Each Stage
51
Costs Management | Party Duties
File = Costs Budget Review Revise = Application (Apparent Change; Reason) Court Approve = Good Reason
52
Costs Management | Court Orders
Approve = Pending Final Assessment Refuse Revise
53
Costs Management | WHEN Final Assessment
Trial End
54
Costs Management | Recovery Requirements
MUST Costs Budget MUST Proportionate TEST = Reasonable
55
Overriding Objective | WHEN Party Consider = Stages
< Proceedings > Proceedings Track Allocation = Directions Questionnaire Exchange = Information; Evidence; Witness; Expert
56
Overriding Objective | Reject Proposal MUST
Witness Statement Reason Information Serve < 21 days
57
Overriding Objective | Court Powers
ADR Directions Orders = Ungley; Stay Proceedings NOT Compulsion = Art. 6 ECHR (Fair; Public; Independent)
58
Stayed Proceedings | Court Powers AND Party Duties
Period = 1m PLUS 4w Extension NO Action in Proceedings Keep Court Informed
59
ADR Sanctions | WHEN
``` NOT Consider = ADR OR Proposal NOT Accept = Reasonable Offer NOT Attempt = Settle NON Compliance = Pre-action Protocols; Court Court Power to Investigate ```
60
ADR Sanctions | Court Orders
Stay Proceedings | Adverse Costs
61
ADR Sanctions | WHAT Adverse Costs
PAY Indemnity Costs Deprive = Costs; Interest PAY = Costs; High Interest @ 10%
62
ADR Sanctions | Costs Factors
Rule = Costs Follow Event CPR Factors Halsey Principles
63
ADR Sanctions | CPR Factors
Compliance ADR Proposals = Reasonable Successful Case Conduct
64
ADR Sanctions | Halsey v Milton Keynes NHS
``` Fact = Death Caused by Nasal Feeding Held = NO Costs Ratio = Reasonable ADR Refusal Factors (6) Nature of Case Merits of Case ADR Attempts ADR Prospect of Success ADR Costs Prejudicial Delay ```
65
Protected Communication | Legal Privilege
Between = Lawyer and Client | Dominant Purpose = Legal Advice
66
Protected Communication | Without Prejudice
``` Between = Parties; Agent Purpose = Settle Dispute ```
67
Without Prejudice | Reason
Encourage ADR NOT Fear Negotiation Offers AND Concessions Change Position
68
Without Prejudice | Exceptions
``` ‘Except for Costs’ Open Offers Parties = Consent; Waive Privilege Establish = Terms; Settlement Concluded Court Set Aside (Agreement) ```
69
Without Prejudice | ‘Except for Costs’
``` Prove = Reasonable Offer WHEN = Adverse Costs Application ```
70
Without Prejudice | Court Set Aside (Agreement)
Misrepresent Fraud Cloak = Threat; Blackmail

ADR (7 decks)

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