1. Analysis, arbitration, mediation and litigation

Question 1

What is the purpose of a case analysis?

Answer 1

A case analysis at the outset will help to:

1. Inform the client’s decision to bring a claim (if the client is the claimant) or how to respond to a claim (if the client is the defendant) on the merits of its case.
2. Inform the strategy for pursuing the client’s case.
3. Assist to estimate and budget cost

Question 2

What does a case analysis set out?

Answer 2

All elements of the dispute:
- duty
- breach
- causation
- loss/damages
- any defences
- parties
- limitation periods
- evidential considerations and burden of proof

Question 3

When should a case analysis be carried out?

Answer 3

At the outset of the matter

Question 4

Why use ADR?

Answer 4

following are all potential advantages of ADR, but whether they apply in any particular case will depend on the facts of that case and the particular form of ADR being considered:

a. court expectations
b. better relationships
c. less expensive
d. saves time
e. privacy / confidentiality
f. less disruption
g. range of outcomes
h. outcomes reflect risk
i. parties in control
j. parties more involved

Question 5

Do parties have to explore ADR?

Answer 5

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

Question 6

What factors will the court take into account whether determining whether a party’s refusal to partake in ADR was reasonable?

Answer 6

1) nature of the dispute
2) merits of the case
3) extent to which other settlement methods have been attempted
4) whether the costs of ADR would be
disproportionately high.
5) whether any delay in setting up and attending ADR would have been prejudicial to the claimant.
6) whether ADR had a reasonable prospect of success.

Question 7

What is mediation?

Answer 7

• confidential process intended to facilitate the resolution of disputes through the medium of an impartial third party – the mediator.
• each party (usually with legal representatives) 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.
• The mediator has no authority to make any decision which is binding on the parties.
• the content of the mediation will remain confidential and will not be made known to the court.

Question 8

What is arbitration?

Answer 8

dispute is resolved by an impartial adjudicator whose decision the parties to the dispute have agreed will be final and binding.

Parties are agreeing to oust the jurisdiction of the court to hear the matter, and to give to the adjudicator instead.

Question 9

When will the decision to arbitrate arise?

Answer 9

Typically, the question of whether to arbitrate or not arises at two key stages:

1. When negotiating a contract the parties may decide to include an arbitration clause in their agreement; or
2. When a dispute has arisen, the parties can choose to deal with it by way of arbitration.

Question 10

What are some pros and cons of arbitration?

Answer 10

Cons: It can be a long and formal and expensive process which is governed by rules and statute.

Pros: privacy, easier enforcement in certain jurisdictions, the ability to choose a specialist to determine the dispute and additional flexibility.

Question 11

What is expert determination?

Answer 11

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

The procedure is determined by the contract between the parties.

Question 12

When may expert determination be suitable/unsuitable?

Answer 12

It is particularly suitable for disputes requiring a technical knowledge, but may not be suitable if the parties wish to be fully heard and there are issues of credibility.

Question 13

Which ADR processes result in a binding determination?

Answer 13

ADR processes with third-party intervention which do result in a binding determination: Expert determination; Arbitration

Question 14

What factors affect when a party should engage in ADR?

Answer 14

1. contract may set out ADR timings and methods
2. some forms can only be considered at certain times
3. the earlier, generally the more costs saved and the relationship may be better preserved
4. the later, the more info on each others cases and evidence.
5. too early, and you may waste costs on a dispute which is not genuine

Question 15

When does the CPR require consideration of ADR?

Answer 15

1. in pre-action protocols
2. in guidance accompanying Precedent H (Costs budget)
3. in confirmation in Directions Questionnaires (must state expressly why not settled)
4. reported to court at case management conference

Question 16

What duty does the Court have as regards ADR?

Answer 16

Court is required to manage cases including by encouraging and facilitating ADR if appropriate.

Question 17

What are sanctions for not participating in ADR?

Answer 17

Silence in the fact of an offer to engage in ADR is likely to be consdidered unreasonable and sanctioned in costs.

Refusing an offer for ADR is similarly likely to be considered unreasonable and sanctioned in costs, in form of adverse cost order.

The court will not automatically sanction in costs a party because it did not positively suggest ADR unless there is a breach of court order or protocol.

Question 18

What powers does the court have to encourage ADR?

Answer 18

1. can order a stay to explore ADR
2. can direct parties to consider ADR and require an explanation of parties’ thinking
3. can reinforce the direction above such as requiring a witness statement

Question 19

Advantages of Arbitration

Answer 19

• Binding decision
• Enforceable - apply to High Court to enforce final arbitral award.
• Confidentiality
• Flexible procedure - arbitrator lays down procedure, and can tailor it to relevant dispute.
• Speed - not constrained by court’s timetabling.
• Expertise of arbitrator - parties can reslected professional expert in the area dispute concerns (cf. litigation where judges are not always the most experienced in relevant area)

Question 20

What is the procedure to challenge an arbitration decision?

Answer 20

very narrow, 28 days from award being made to apply, and requires proof of a serious irregularity in proceedings.

cf. litigation is more advantageous - affords right to appeal.