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DR > W8 A&Q (ADR) > Flashcards

W8 A&Q (ADR) Flashcards

1
Q

What are forms of ADR?

A

1) Negotiation

2) Mediation

3) Arbitration

4) Mediation/Arbitration (Med-arb)

5) Early neutral Evaluation/Expert appraisal/ Expert Evaluation

6) Expert determination

7) Conciliation

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2
Q

What is negotiation?

A

Negotiation is a communication process between parties that is intended to reach a comprise or agreement to the satisfaction of both parties.

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3
Q

What is mediation?

A

Mediation is a confidential process intended to facilitate the resolution of disputes through the medium of an impartial third party - the mediator.

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4
Q

Does the mediator have the power to bind the parties?

A

No

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5
Q

If the mediation does not end in an agreed resolution, can the content be made know to the court?

A

No, the content in the mediation will remain confidential

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6
Q

What is the procedure of meditation?

A

Each party (usually with legal representative) will be present in the same location but in different rooms.

The mediator will move between the rooms delivering settlement offers and guiding each party to reflect on those offers and the alternatives to reaching an agreement.

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7
Q

What is arbitration?

A

Arbitration is a process by which a dispute is resolved by an impartial adjudicator whose decision to the dispute will be final and binding.

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8
Q

What is the consequences of arbitration?

A

By agreeing to arbitrate disputes parties are agreeing to

1) oust the jurisdiction of the court to hear the matter

and

2) to give the jurisdiction to a different impartial party (the adjudicator) instead.

3) Long and formal process governed by rules and statute.

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9
Q

What stage does arbitration arise?

A
  • When negotiating a contract the parties may decide to include an arbitration clause in their agreement to cover disputes that arise in the future.

or

  • When a dispute has arisen, parties can choose to deal with it by way of arbitration.
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10
Q

What is the advantage to arbituation?

A

a) privacy

b) easier enforcement in certain jurisdiction

c) the ability to choose specialist to determine the dispute

d) flexibility

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11
Q

What is med-arb?

A

Is a process whereby parties agree that, initially they will try to resolve any dispute by mediation.

In the event that this does not result in satisfactory resolution of the matter, the matter will move to arbitration pursuant to which a binding determination will be made.

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12
Q

What is early neutral evaluation/expert appraisal/expert evaluation?

A

These terms all refer to processes where an independent party is appointed by the parties, to provide a non-binding assessment of the matter(s) referred to it.

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13
Q

Who can bean independent party in an early neutral evaluation/expert appraisal/expert evaluation?

A

Could be a lawyer

But

Alternatively could be an expert relevant in a matter.

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14
Q

Will the party have to pay for the independent party?

A

Yes for time and cost

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15
Q

What does the assessment in an early neutral evaluation/expert appraisal/expert evaluation provide?

A

An impartial ‘opinion’ which might usefully influence the parties in future settlement discussions. NOT BINDING.

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16
Q

What is an expert determination?

A

An independent expert on the subject matter is appointed by the parties to determine the dispute.

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17
Q

How is the procedure of an expert determination determined?

A

By contract between the parties.

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18
Q

When is expert determination suitable?

A

For disputes requiring technical knowledge

BUT *this may not be suitable if the parties wish to be fully heard and there are issues of credibility

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19
Q

Is the expert determination binding?

A

Yes

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20
Q

What is the difference between expert determination and expert appraisal?

A

Expert determination: Binding

Expert appraisal: NOT binding

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21
Q

What is conciliation?

A

Conciliation involves an independent neutral third party in helping parties to resolve their dispute.

*Conciliation often forms part of statutory scheme or other regulatory scheme, and that scheme might provide who the conciliator should be, and the process involved.

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22
Q

Is conciliation binding?

A

No

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23
Q

Which types of ADR are binding?

A

Expert determination
and
Arbitration

24
Q

Which types of ADR are not binding?

A

Negotiation

Mediation

Early neutral evaluation/expert appraisal/expert evaluation provide

and

Conciliation

25
Q

Which ADR includes third party intervention?

A

Mediation

Early neutral evaluation/expert appraisal/expert evaluation provide

Conciliation

Expert determination

and

Arbitration

26
Q

Which ADR does NOT include third party intervention?

A

Negotiation

27
Q

Which ADR includes third party intervention which result in a binding determination?

A

Expert determination
and
Arbitration

28
Q

Which ADR includes third party intervention which does not result in a binding determination?

A

Mediation

Early neutral evaluation/expert appraisal/expert evaluation provide

Conciliation

29
Q

What are the potential advantages for all ADR?

A
  • Better relationship between parties
  • Saves time

-Less disruption

-Range of outcomes

-Parties in control

  • Less expensive

-Privacy/Confidentiality

  • Outcomes reflect risk: Only for non-binding ADR
  • Parties more involved.

*Whether these advantages applies depend on the case of facts and the particular form of ADR used.

30
Q

Does the court expect parties to explore ADR?

A

The court expects the parties to act reasonably in relation to considering and engaging in ADR, and can impose sanctions if they do not.

31
Q

What is the consequences of not engaging in ADR?

A

Courts can impose sanctions

32
Q

What forms of ADR allow the benefit for outcomes that reflect risk?

A

In non-binding forms of ADR the parties can agree a settlement that reflects the risk to each

*In court proceedings, the judge cannot decide the claim in such way . The judge must decide each issue and then give a judgement accordingly, and cannot discount the judgement sum to take into account the uncertainty that is the right judgement.

33
Q

Which types of cases are not suitable for ADR?

A

Very few. In practice, most concerns about the suitability of a case for ADR can be overcome if the ADR is appropriately chosen and timed.

34
Q

What is the role of lawyer in ADR?

A
  1. Ensure the client is fully aware of the options of ADR
  2. Help their client to pursue any ADR which it wishes to pursue.
  3. Act within the authority to settle granted by the client in any settlement discussions. it generally prudent to involve the client directly in the final approval of any settlement agreement.
35
Q

When should party engage in ADR?

A

Depends on the ADR and various factors.

36
Q

Can arbitration be considered after court proceedings have been commenced?

A

No

37
Q

What factors suggest earlier ADR is better? and why?

A

Cost saving: the earlier ADR, the greater the cost saving in the event of success.

Better relationship and info: Even if ADR does not lead to settlement, it can improve the relationship between the parties and produce useful info.

38
Q

What factors suggest later ADR is better? and why?

A
  • Parties will better understand each other’s case.

-Parties will better understand the evidence that each party has available.

  • Too early = may have incurred costs when the dispute is not genuine and would not have been perused anyways.
39
Q

Does the Pre-action protocol and the practice direction on pre-action conduct require the parties to consider ADR?

A

Yes

40
Q

How does the Precedent H have implication for when ADR should be considered?

A

(Cost budget ) Requires the inclusion of some elements relating to negotiation and advising settlement

41
Q

Which CPR contain various provision which have implication for when ADR should be at least considered?

A
  • Various Pre-action protocol and the practice direction on pre-action conduct.
  • Precedent H (Cost Budget)

-Direction Questionaries

-Case management conference

42
Q

How does the Direction questionnaires have implication for when ADR should be considered?

A

Requires legal representatives to confirm that they have explained to clients the need to try to settle, the settlement options and possible cost sanctions.

43
Q

How does the case management conference have implication for when ADR should be considered?

A

The court is likely to want to know what steps the parties have taken to explore alternative dispute resolution.

The court can give direction that are aimed at encouraging and facilitating ADR, if appropriate.

44
Q

How does the court encourage the parties to engage in ADR?

A

a) Provide info about ADR

b) Courts discretion on cost

c) Court can order a stay in order for the parties to explore ADR

d) Court can direct the parties to consider ADR and require an explanation of the parties’ thinking in that regard

c) The court can reinforce the direction (for the parties to consider ADR) by requiring to produce a witness statement to make a record of the situation for the courts to consider (for example)

45
Q

Can a court compel a party to engage in ADR?

A

No

46
Q

What is a factor the court will consider when making a cost order?

A

The conduct of the parties and compliance with pre-action protocol.

47
Q

At what stage is the conduct of the parties considered by the court when making a cost order?

A

Conduct before, as well as during proceedings

48
Q

Why can’t the content of a mediation be known to the court?

A

It’s a type of privilege (without prejudice communication) = Cannot be inspected

49
Q

Who has the burden of proof to show the court why it should depart from the general rule on costs and apply the court’s discretion?

A

The unsuccessful party

50
Q

What will the court consider if the party refused to engage in ADR?

A

If the refusal was reasonable by looking at all the circumstances of the case.

51
Q

What is the consequence if the court considers that the party’s refusal to engage in ADR is unreasonable?

A

It will impose a cost penalty

52
Q

What circumstances does the court consider if the party refused to engage in ADR?

A

1) The nature of the dispute (How suitable it is for ADR)

2) The merits of the case (A refusal to engage in ADR may be more justifiable if the party justifiably believes it to be strong).

3) The extent to which other settlement methods have been attempted

4) Whether the cost of ADR would be disproportionately high (Note: that free fixed-fee mediation are potentially available in relation to low value claims which might make the costs proportionate even for such claims)

5) Whether any delay in setting up and attending the ADR would have been prejudicial (example: close to trial)

6) Whether ADR has reasonable prospect of success

*The court does NOT take the same approach when considering what the consequences should be for a party who has simply failed to suggest ADR.

53
Q

Will the court refuse to award costs to a successful party simply because it did not positively suggest ADR?

A

No

54
Q

What is the impact if a party is silent in the face of an offer to engage in ADR?

A

This is most likely to be considered unreasonable and to be sanctioned in costs (unless the parties are already engaged in a form of ADR)

55
Q

What is the procedure for a party upon a receipt of an offer to engage in ADR?

A

1) Consider with their legal advisor the merits of the offer

2) Respond promptly, in writing, setting out reasons for its decision, and noting the principles

3) if they do not wish to engage in ADR, explain in what different circumstance it would agree to ADR.

4) Make that letter with ‘open’ or ‘without prejudice save as to costs’ and

5) Consider making a separate not of any reasons for refusal that is unwilling to express to the opponent at that time, in a form which can be later shown to the court if necessary.

DR (26 decks)

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