ADR: Non-Adjudicative Options (Syllabus 5) Flashcards

1
Q

What is early neutral evaluation?

A

it is a private, non-binding assessment and evaluation of the facts, evidence and/or legal merits of one or more of the issues in a case

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2
Q

What is the difference between ENE and mediation?

A

mediation is a facilitative process, whilst ENE is an advisory and evaluative process. It is the independence of the evaluator that distinguishes ENE from mediation

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3
Q

When is ENE most effective?

A

when it is undertaken at an early stage in a dispute

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4
Q

Can ENE take place in the court system?

A

Yes but this is usually carried out by a judge.

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5
Q

Can ENE take place outside of the litigation process?

A

Yes

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6
Q

Is ENE private?

A

Yes, it is a private and confidential process and the evaluator must be impartial.

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7
Q

At what stage should ENE be employed?

A

in the early stages of a dispute, but it can be utilised at any stage.

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8
Q

When should ENE be used?

A

when one or more of the parties has taken an unrealistic and entrenched view on the issues and would benefit form an assessment from an independent person

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9
Q

Why is ENE useful?

A

it can enable each party to appreciate the strengths and weaknesses of the case which can encourage and lead to settlement.

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10
Q

In what manner will the evaluation be conducted?

A

this will be decided by the evaluator, but the procedure will be fixed after consultation with the parties.

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11
Q

What is a benefit of ENE?

A

the process is flexible and the parties can tailor it to meet the needs of the case. The parties can control the amount and form of information provided to the evaluator and identify issues that they want evaluated.

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12
Q

How many parties need to instruct an evaluator?

A

the evaluator can be instructed by one or both parties.

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13
Q

When will time limits be set in ENE?

A

At the preliminary hearing (only if the evaluator chooses to have one)

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14
Q

What is the procedure for ENE?

A

(1) each instructing party makes written submissions to the evaluator, together with such evidence and supporting documents as they seen fit.
(2) the evaluator evaluates the evidence and the law and produces a recommendation setting out his or her assessment of the merits of the dispute and the likely outcome of it.

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15
Q

Can the parties have an oral hearing in ENE?

A

Yes this is something that the parties and evaluator can agree on.

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16
Q

Is the evaluation binding?

A

No, it is not the parties do not have to accept it.

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17
Q

What will the procedure be where a judge undertakes the ENE?

A

(1) the judge will consider the legal and factual issues, evaluate the evidence and any submissions of the parties, and issue a non-binding recommendation or evaluation.

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18
Q

Can the court order ENE?

A

Yes, pursuant to CPR 3.1 even if one party does not consent to it.

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19
Q

Can ordering an ENE hearing under CPR 3.1 be deemed to obstruct the parties’ access to the courts?

A

No because ENE hearings are simply part of the court process

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20
Q

Are judicial ENE’s persuasive?

A

Yes because they give the parties an indication of the likely outcome at trial.

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21
Q

What does conciliation mean?

A

it has no single agreed meaning, but it normally involves a neutral third party. The conciliator might facilitate a negotiation between the parties

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22
Q

What do the most important conciliation processes have?

A

a statutory basis, and they involve conciliators who are appointed by an outside body rather than the parties.

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23
Q

Is conciliation confidential?

A

Yes

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24
Q

What issues can be covered in a compromise agreement?

A

any of the issues brought in the conciliation and issues and interests going outside of the scope of the original dispute.

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25
Q

What disputes are suitable for mediation?

A

all disputes which raise issues capable of being g resolved by negotiation.

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26
Q

Can parties contractually bind themselves to resolve a dispute by using mediation?

A

Yes

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27
Q

When should mediation be considered to be used to resolve a dispute?

A

if the court has encouraged or directed the parties to attempt settlement by mediation, or where the parties may face adverse costs orders if they unreasonably refuse mediation

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28
Q

When might mediation not be appropriate?

A

in debt claims where there is no sustainable defence as it may be more advantageous in such cases to issue proceedings and apply for summary judgment

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29
Q

When can mediation take place?

A

at any stage in the proceedings up to trial and even pending an appeal

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30
Q

How can the court assist in the timing of mediation?

A

they should try to set a timetable for trial that allows the parties to take part in ADR along the way.

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31
Q

When is the most advantageous time to embark on mediation?

A

if the parties have fully defined the issues, disclosed key information and quantified the claim and any counterclaim, then the most advantageous time is before proceedings are issued.

32
Q

What should the parties do if further information or documentation is needed?

A

agree that this should be done in advance of mediation, or as part of the mediation procedure.

33
Q

When should mediation be attempted if it cannot be reasonably undertaken before issuing proceedings?

A

after the exchange of statements of case or after disclosure of documents.

34
Q

Can the parties apply for a stay in the court proceedings to attempt mediation?

A

Yes, this is the best way to save costs

35
Q

Can a party refuse to participate in mediation?

A

any refusal must be objectively reasonable on the facts of the particular case and the party refusing it must be prepared to explain and justify this to the court.

36
Q

What will happen if the court deem there to be an unreasonable refusal to participate in mediation?

A

they may make an adverse costs order

37
Q

What is the role of the mediator?

A

The mediator will:

(1) chair the meetings and manage the process
(2) set the agenda for the mediation and suggest the order in which issues should be negotiated
(3) control the form that the mediation follows
(4) decided whether discussions should take place in joint or private meetings
(5) prevent interventions by the other side during the opening statement of the opposing party.
(6) control the form of questions that one party may put to the opposing party

38
Q

How will the mediator act as a facilitator?

A

the mediator will:

(1) gather information from the parties both at the pre-mediation stage and during the mediation
(2) help the parties to identify the legal and factual issues
(3) encourage the parties to treat the mediation as their ‘day in court’
(4) help the parties to listen to each other and communicate more effectively with each other
(5) discourage or defuse confrontational or aggressive communications between the parties that will hinder negotiations
(6) encourage parties to think about the BATNA and WATNA.

39
Q

How will the mediator act as the intermediary?

A

they will convey offers, concessions and information, rejections, concessions and counter-offers from one party to another. The parties will negotiate through the mediator as an intermediary

40
Q

How do the parties maintain trust and confidence in the mediator?

A

for the parties to maintain trust and confidence, the mediator must ensure that he or she is even-handed in his or her dealings.

41
Q

Do mediators have to comply with ethical standards?

A

Yes

42
Q

What is the required competence of a mediator?

A

a mediator must be competent and knowledge in the process of mediation. The mediator should be competent to conduct the mediation bearing mind the nature and complexity of the dispute and the needs and objectives of the parties.

43
Q

What do mediators need in relation to independence?

A

Mediators must ensure there is no conflict of interest with any of the parties directly or indirectly affected by the dispute. If circumstances do arise that might give rise to a conflict of interest these should be disclosed to the parties immediately

44
Q

What must the mediator ensure in relation to the mediation procedure?

A

that all the parties understand the nature and purpose of the mediation process, the terms of the mediation agreement, the fees payable and the obligations of confidentiality imposed on the parties and the mediator.

45
Q

What does the mediator need to ensure in relation to fairness?

A

the mediator must act fairly between the parties, ensuring that all parties have adequate opportunities to be involved in the process and that the process is conducted in a manner which is fair to both parties.

46
Q

Does the mediator have to ensure that the terms of the settlement are fair to each of the parties?

A

No, the point of mediation is that the parties make their own decision, the mediator only has to ensure that the discussions made are fair

47
Q

Can the mediator place pressure on parties to settle?

A

No

48
Q

Is the information arising out of a mediation confidential?

A

Yes, the mediator must keep all information arising out of or in connection with the mediation confidential, unless compelled to give full disclosure by law.

49
Q

If confidential information is passed from one party to a mediator, can the mediator pass this information on the other party?

A

Not without permission, or if compelled by law.

50
Q

Can the mediator terminate the mediation?

A

Yes if they believe a settlement to be unenforceable, illegal or that continuing the mediation is unlikely to result in settlement

51
Q

Can the parties withdraw from the mediation and what is the mediator’s role in relation to this?

A

the mediator should explain to the parties that they have the right to withdraw from the mediation at any time and without giving reason for doing so

52
Q

What should the mediator do if an agreement is reached at the mediation?

A

ensure that all the parties understand the terms of the agreement, and that they consent to it.

53
Q

Can a confidentiality clause be implied from a mediation?

A

Yes, because it would destroy the basis of mediation if either party could publicise the matters that took place between them and the mediator.

54
Q

Does the mediator owe a duty of confidentiality to the parties?

A

Yes

55
Q

Does a confidentiality clause reinforce the without prejudice rule?

A

Yes but this would not apply to documents produced for other purposes even if they were used in the mediation.

56
Q

What does the confidentiality in mediation attach to?

A

it attaches to the events during the mediation process, rather than the fact that the parties are about to or have embarked on mediation

57
Q

When does the duty of confidentiality apply until for the mediator?

A

It is a continuous duty, even after the mediation has completed or been terminated

58
Q

Who can waive the confidentiality clause in mediation?

A

Unlike the without prejudice rule which exists only for the benefit of the parties, the mediator also has a right to the confidentiality. Hence, to waive confidentiality all parties and the mediator must agree to do so.

59
Q

When will the court override the confidentiality provisions?

A

if it is in the interests of justice to do so.

60
Q

How does the without prejudice rule apply to mediation?

A

the documents and communications taken during the mediation made for the purpose of settling the dispute cannot be referred to in subsequent court proceedings

61
Q

What can the court do is a party attempts to refer to a part of mediation discussions?

A

the court may grant an injunction to restrain a party from referring to any part of the discussion.

62
Q

What communications from mediation will be protected by the without prejudice rule?

A

(1) any oral or written communications between the parties or the parties and the mediator made for the purposes of exploring settlement.
(2) communications created for the purpose of trying to persuade the parties to mediate
(3) it may also operate to protect information obtained from investigations as carried out as part of the mediation process.

63
Q

What communications are not protected by the without prejudice rule in mediation?

A

(1) if representations fall under the fraud/misrepresentation except
(2) the rule does not protect documents that were not created for the purposes of exploring settlement.
(3) the court can look at communications if they are determining whether such communications resulted in a concluded settlement.
(4) the mediation agreement is not protected by the without prejudice rule

64
Q

Can the mediator rely on the without prejudice principle?

A

This rule exists for the benefit of the parties and can be waived by them. It is not a privilege of the mediator

65
Q

Is there a legal advice privilege in mediation?

A

Yes, this will also be upheld in the mediation and the privilege will not be waived by one party subsequently bringing proceedings.

66
Q

Who should attend the mediator?

A

Those who:

(1) have direct knowledge of the key issues in the case
(2) are closely and personally affected by the dispute or the resolution of it.
(3) who has the necessary technical expertise
(4) has the authority to settle the dispute

67
Q

What is a position statement?

A

this is a statement from both parties setting out their case. Although, parties will rarely be asked to provide a position statement for a case being mediated by the Small Claims Mediation Service.

68
Q

What documents are necessary for mediation and how should they be complied?

A

The documents should be provided in an agreed bundle. This should consist of:

(1) statements of case if proceedings have been issued and detailed letters of claim if they have not
(2) witness statements that have been disclosed by the parties
(3) any expert reports
(4) case management orders
(5) Part 36 offers or other offers that have not been accepted
(6) any relevant key documents
(7) any other relevant correspondence

69
Q

What are the four key stages of a mediation?

A

(1) the opening stage- consists of introductions and each party setting out their position in relation to the issues in the case.
(2) the exploration- this can take place in open or private meetings
(3) the negotiation stage - this normally takes place in private meetings
(4) the settlement - this takes place in joint meetings and the lawyers draw up any agreements

70
Q

What happens in the open joint meeting in stage 1 mediation?

A

(1) introduction
(2) opening statement by mediator
(3) opening statement by each party
(4) mediator’s closing remarks

71
Q

What happens if the meeting at stage 2 mediation is open?

A

(1) explore issues
(2) explore each party’s position on issues
(3) exchange information

72
Q

What happens if the meeting at stage 2 mediation is closed?

A

(1) mediator explores each party’s case
(2) mediator carries out reality check
(3) parties and mediator explore strategies for settlement.

73
Q

What happens if the stage 3 mediation meeting is open?

A

where parties negotiate face to face

74
Q

what happens if the stage 3 mediation meeting is closed?

A

the mediator acts as a shuttle diplomat, parties make and consider offers and concessions

75
Q

What happens in the stage 4 of the mediation?

A

they confirm settlement terms, lawyers work together to draft settlement agreements