1-2. Alternative Dispute Resolution Flashcards
Characteristics of Mediation
- Intermediate third party acts as mediator
- Confidential
- Cheaper and quicker than arbitration
- Flexible: no legal requirements
- Preserving a business relationship better here
Statutory Provision Governing ADR
Governed by Civil Procedure Rule 1998:
- Set out how a case is litigated
- failure to respond to reasonable proposal to attempt settlement by ADR may impact orders for costs
Characteristics of Arbitration
- Voluntary: in the sense that the parties either voluntarily entered into arbitration agreement or agreed to decide using arbitration once a dispute arose
- If arbitration agreement: once one party commences court proceedings others should acknowledge service and if they wish to enforce the agreement should apply to court to stay (suspend) proceedings
Characteristics of Litigation
- Not voluntary (unless claimant chooses to issue a claim in the first case)
- Neither party can withdraw without paying the opponents cost
- If settlement agreement not possible (or ADR) court will impose its own solution
When should ADR be used?
Should be used UNLESS
- Inappropriate (ie. because injunction is required)
- other party is unlikely to co-operate in the process or
- other party cannot be trusted to comply with an award
If a party proposes a form of ADR and another party refuses to engage - what should they do to attempt to minimise costs sanctions in litigation
any party not engaging in any such means proposed by another must serve a witness statement giving reasons within 21 days of that proposal; such witness statement must not be shown to the trial judge until questions of costs arise.
Does the court have the power to force parties to participate in ADR
the court can now lawfully stay proceedings for, or order, the parties to engage in a non-court based dispute resolution process.
- IF this is proportionate to achieving the legitimate aim of settling the dispute fairly, quickly, and at reasonable cost
Process of Mediation
- Parties will agree to ITP or party to act as a ‘go-between’ known as a mediator
- Mediator will be sent written statements from both parties
- Mediator will discuss the case with both parties confidentially
- May do so in the same building for timing sake, but can also be done via correspondence, telephone conversations or online
Cost of Mediation
cheaper than arbitration and litigation (quicker) but parties must pay ITP
Flexibility in Mediation
No legal requirements allow parties to choose procedure they want to follow
Privacy in Mediation
Takes place in private (salient for reputation issues, or if there are potential further claims)
- BUT Client may require public vindication
Preserving a business relationship: Mediation
Good because it is non-confrontational
Is mediation a good approach when looking to secure a solution which takes into account the commercial reality of the parties involved?
ITP can held parties arrive at realistic and workable settlement terms (including arrangements a court could not order such as discounts on future orders)
Mediation: Disclosure
No formal disclosure procedures means parties may resolve disputes without knowing all the facts
Ability to withdraw from Mediation
Parties may withdraw before solution has been agreed (despite objections from other party) which would require litigation
Is the outcome of mediation binding?
Not automatically - but agreement can be recorded in contract (giving remedies for breach etc.)
Arbitration: procedure
(1) dispute referred to independent arbitrator (this person may be specified in contract) or parties choose their own
(2) Third party’s decision is binding on both parties
Advantages of Arbitration
- Likely to be quicker than going to court and cheaper
- Less formality in procedure
- Decision made by impartial third party with expertise
- Takes place in private
- Solutions more practical than those which would be ordered by a court
- Decision binding on the parties
Disadvantages of Arbitration
- dispute may not receive the same depth of investigation (depending on which procedures are used)
- certain remedies (like injunctions) are not available
- Not cheap: need to pay arbitration expert / panel and parties may wish to be represented by lawyers
- Limited right of appeal (decisions very binding)
Once a decision has been reached in arbitration - can this be enforced / how?
Once a decision has been reached, the winning party to an arbitration can apply to the High Court under s 66 of the Arbitration Act 1996 for permission to enforce the arbitration award as if it were a court judgment.
Court Personnel involved in Civil Litigation
- Judges
- Court Manager
- Ushers
- Enforcement officers
What kinds of trials can district judges hear?
Those where amount involved does not exceed 25 000
Effect of a party missing the time limits in the Limitation Act 1980
if a party has missed limitation period, defendant has a technical defence to the claim (claim is statute barred, so claimant cannot succeed with the litigation)
Limitation Periods for Contract / Tort Claims
the claimant has six years from the date of the cause of action to commence their proceedings
EXCEPTION: if the contract specifies a shorter period