Factors influencing selection Flashcards
Why might a lawyer not find it easy to give advice on ADR?
May feel they can litigate for the client themselves
Difficult to advise on ADR at a certain stage in litigation
ADR might appear an intrusion to litigation
May have concerns about having less control in ADR
Will have natural concerns about his fee income
Can be challenging to compare the potential advantages and disadvantages
But lawyers should feel more confident in giving advice because:
ADR options are not outside most lawyers’ experience”
AD involves similar elements to litigation
Disclosure = much of the key information is not available before issue of proceedings
ADR processes are flexible
Clients are likely to be attracted to lawyers who offer a service that includes ADR
What are the professional duties to give advice?
Code of Conduct: a barrister must act in the client’s best interests
To comply with the relevant CPR rules:
- To comply with a pre-action protocol
- To consider a stay for ADR
- Where there is a possibility of a costs sanction
- If the other side proposes ADR
- To ensure that costs remain proportionate
When should advice be given on ADR?
Giving initial advice
Holding a conference or meeting
Writing an opinion
Reviewing a case prior to issuing proceedings
Reviewing a case prior to a court hearing
What are the main stages of litigation where ADR might most usefully be reviewed?
When the case first comes to the lawyers
Before issuing proceedings
At track allocation or at a CMC
After disclosure and inspection of evidence/exchange of witness statements
On consideration of expert evidence
When a Part 36 offer is made
Just before trial
What are the advantages in deciding about ADR while a relationship is positive?
Useful where informal or private resolution is desirable
Parties can agree on the form of ADR and a body/individual to act
Parties can agree the process and timescale, and how costs will be met
Parties can effectively draw up their own pre-action protocol
Can help ensure a constructive approach, so the focus is the resolution
How should an ADR clause be drafted?
An ADR clause must be drawn up carefully as it will be contractually enforceable
The terms must be sufficiently clear to be enforced
An agreement to use a named expert/provider/process is specific and enforceable
If too vague, the court will not enforce
However, the form of ADR selected can affect whether it will be enforced or not
E.g. negotiation and mediation are consensual and cannot be forced
What are the factors influencing ADR selection?
- *Where jurisdiction is an issue**
- ADR can help overcome jurisdictional issues
- International arbitration or mediation are good
- *Where a court order is necessary**
- E.g. for a declaration or rights or an injunction
- Even if ADR is used, a court order may be required to approve it
The relative cost of possible options
- *How important expert knowledge is**
- It may be expensive to litigate with expert evidence
- In ADR, the parties can select an adjudicator with relevant expertise
Where confidentiality is important
How much control the client wants
- *What the main objectives are of the client**
- The range of remedies in court is well developed
- Court orders are authoritative and can be enforced through court
- But in litigation the judge only has the power to make such an orders to remedy the cause of action argued
Where a future relationship is important
- *What is the relevance of the chances of success?**
- A client who wants to ‘win’ may not want the compromise that comes with ADR
Whether the client wants his ‘day in court’
Whether neutral assistance would be valuable
The stage the case has reached
- *Where an interim order may be important**
- Judges have wide powers to grant interim orders
- Non-adjudicative ADR is carried out by agreement and so no orders are available
- The parties can give an arbitrator these powers, but they won’t have the same range/force
- *Where orders relating to evidence may be needed**
- There are court powers with regards to disclosure
- An arbitrator will not have the powers of a judge to compel disclosure
- With ADR, the parties can choose how much is disclosed
What the attitude of the court is
- *Where enforcement may be an issue**
- Likely to be less problem with enforcement in ADR, since the parties agreed to ADR and agreed to the settlement
- But a court judgement will carry the full enforceability options of the court
- Whereas an ADR agreement may need to be enforced with separate proceedings altogether
Where is ADR inappropriate?
A court judgement is needed as a precedent
Powers of the court to make interim orders are important
Client has a very strong case
Law is very complex
Facts are very complex
Many parties to the action
Great animosity between the parties
Quasi-criminal allegations
Matter of public policy is involved
C wants to make a public point of going to court
Potential concerns about ADR
- ADR will undermine litigation
- Proposing ADR shows a lack of faith in your case
- ADR can undermine a lawyer’s control of a case
- Can be much easier to deal with an arbitrator than a judge
- ADR does not really save costs
- Selecting the most appropriate form at the earliest reasonable opportunity can
- ADR is a way of getting something for a weak case
- Can be effective in making it clear to a litigant just how weak their case is
- ADR involves too much pressure to settle
- Always possible to say no and walk away
- ADR is used as a delaying tactic
- Robust case management will not tolerate delay
- ADR is not robust
- Arbitrators and mediators are like judges in being qualified lawyers with many years of experience
How can you secure agreement to ADR by an unwilling opposing party?
Remind the refusing party of the obligation to comply with CPR and the risk of sanction
Suggest specific benefits of ADR
Offer information about ADR options
Propose a simple ADR option
Address any concerns you think an opponent might have
Offer to pay reasonable ADR fees
Seek to persuade a judge to order a stay
What is the confidentiality like in ADR?
Privacy depends on three things:
- Contractual agreement – a confidentiality clause in mediation and arbitration agreements
- Legal processional privilege
- Without prejudice communication
Problems may arise if:
- ADR breaks down and there is an attempt to use something revealed in later litigation
- There is a dispute about the terms agreed in settlement
- There is an attempt to call anyone involved in the ADR as a witness later
When should ADR be used?
- Should be when enough is known to evaluate the case, and where ADR can best save costs
- Must have regard to considering ADR
- Shouldn’t unreasonable refuse ADR, if proposed by the other side
