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Ethical Dispute Resolution > ALL THE NOTEZ > Flashcards

ALL THE NOTEZ Flashcards

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1
Q

What does Rule 3.1 state regarding a lawyer’s duty?

A

A solicitor’s duty to the court and the administration of justice is paramount and prevails to the extent of any inconsistency with any other duty.

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2
Q

In Giannarelli v Wraith (1988), what is emphasized about a lawyer’s duty to the court?

A

The duty to the court is paramount and must be performed, even if the client gives instructions to the contrary.

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3
Q

What does Rule 8.1 state about following client instructions?

A

Duty to follow the client’s instructions is subject to the duty of the court (rule 3.1).

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4
Q

What does Rule 5.1.1 require from a lawyer?

A

Lawyer must not engage in conduct that demonstrates they are not a fit and proper person to practice law.

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5
Q

What does Rule 5.1.2 state regarding conduct that diminishes public confidence?

A

Conduct that is prejudicial to or diminishes public confidence in administration of justice or brings the profession into disrepute is prohibited.

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6
Q

What was the outcome of LPCC v Brickhill [2013] regarding conduct outside of practice?

A

Conduct outside the practice of law may bring the legal profession and the administration of justice into disrepute.

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7
Q

What is the fundamental duty a lawyer owes to the court according to Rule 4.1?

A

The duty of honesty and candour.

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8
Q

What does Rule 19.1 prohibit?

A

Lawyer must not mislead the court or knowingly allow the client to mislead the court.

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9
Q

In Kyle v Legal Practitioners Complaints Committee [1999], what must a lawyer not do regarding documents?

A

Must not file pleadings, affidavits or other documents containing a statement that the lawyer knows are false or misleading.

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10
Q

What does Rule 19.2 require from a lawyer who makes a misleading statement?

A

Lawyer who makes a misleading statement to a court must correct it as soon as aware it is misleading.

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11
Q

What should a lawyer do if their client has made a false or misleading statement?

A

They must seek consent of the client to correct it; if consent is refused, the lawyer must cease acting.

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12
Q

According to Rule 21.2, how must a lawyer ensure allegations against a person are justified?

A

Allegations must be reasonably justified by material available to the lawyer and made for legitimate forensic purpose.

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13
Q

What does Rule 22 prohibit regarding third parties?

A

Lawyer must not mislead anyone in the course of their practice.

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14
Q

What is the duty regarding negotiations as per Rule 22.1?

A

A lawyer must not knowingly make a false or misleading statement to an opponent.

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15
Q

What does Rule 17 state about the lawyer’s role in dispute resolution?

A

Lawyer must not act as the mere mouthpiece of the client; must exercise independent forensic judgement.

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16
Q

What is prohibited under Rule 24 regarding witnesses?

A

Lawyer must not advise or suggest a witness give false evidence or coach a witness.

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17
Q

What does Rule 4.1.2 require from a lawyer regarding honesty?

A

Requires complete candour and transparency.

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18
Q

According to Rule 4.1.3, what does the duty to act competently include?

A

Substantive knowledge and skill, timely dealings, and keeping the client informed.

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19
Q

What must a lawyer do according to Rule 7.1 regarding communication with clients?

A

Must communicate in language clients will readily understand.

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20
Q

What does Rule 7.2 require from a lawyer regarding alternatives to litigation?

A

Inform the client about alternatives to a fully contested adjudication of the case reasonably available.

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21
Q

What is the requirement of Rule 4.1 regarding the best interests of the client?

A

Solicitor must act in the best interests of the client.

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22
Q

What does Rule 28 prohibit regarding the publication of material?

A

A lawyer must not publish material concerning current proceedings that may prejudice a fair trial.

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23
Q

What should a lawyer do to confirm oral advice to a client?

A

Confirm oral advice in writing to ensure client’s recollection and understanding of it.

This helps maintain clarity and accountability.

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24
Q

What is the primary obligation of a lawyer under Rule 7.1?

A

Client must be kept informed of significant developments.

This enables the client to make informed choices about actions during their matter.

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25
What does Rule 7.2 state about alternative dispute resolution (ADR)?
The extent of advice depends on instructions, the nature of the matter, and the client’s knowledge and experience of ADR.
26
True or False: A lawyer can coerce a client into settling a dispute.
False ## Footnote Lawyers must not coerce clients; the decision to settle is ultimately the client's.
27
What does Studer v Boettcher [2000] NSWCA 263 imply about advising clients on settlement?
A lawyer is not negligent for advising a settlement simply because a better outcome was later possible.
28
What must a lawyer do regarding client expectations?
Understand client’s expectations and advise if they are unrealistic.
29
What is prohibited under Rule 22.1 regarding demands?
Must not make demands that go beyond a legitimate demand on behalf of their client.
30
What should a lawyer do to maintain civility in communication?
Have someone else read your communication before sending it.
31
Under what circumstances can a lawyer terminate a retainer?
Client agrees, lawyer terminates for good cause, or ends by operation of law.
32
What is Rule 9 concerning a lawyer's duty of confidentiality?
A solicitor must not disclose any information confidential to a client during their engagement.
33
List the exceptions under Rule 9.2 that allow a solicitor to disclose confidential information.
* Client expressly or impliedly authorizes disclosure * Compelled by law to disclose * Discloses for legal or ethical advice * To avoid serious criminal offense * To prevent imminent serious physical harm * Disclosed to the solicitor's insurer.
34
What is the duty of loyalty regarding concurrent conflicts under Rule 11?
A solicitor must avoid conflicts between duties owed to two or more current clients.
35
What must a solicitor do if they possess confidential information from a former client?
Must not act for a current client in a matter where the information may harm the former client unless informed consent is given or an effective information barrier exists.
36
Define positional negotiation.
Positional negotiation involves narrowing the gap between positions focusing on maximizing one's own gain.
37
What are the risks of positional negotiation?
* Inhibits flexibility * Focused on individual gain * Hard positions may devalue relationships. * Encourages fixed pie thinking.
38
What is interest-based negotiation?
Focuses on underlying interests rather than positions, encouraging creativity and mutual gain.
39
List the categories of interests in interest-based negotiation.
* Problem (substantive topics) * Process (fairness of the process) * People (ongoing relationships) * Principles (ethical/cultural values).
40
What does BATNA stand for?
Best Alternative to a Negotiated Agreement.
41
What is the significance of knowing your BATNA?
A clear BATNA strengthens your negotiation position.
42
What should you do if you do not reach an agreement in negotiation?
Consider your BATNA.
43
What is the 7 Elements Preparation Framework used for?
To look behind positions to underlying interests in negotiation.
44
What does BATNA stand for?
Best Alternative to a Negotiated Agreement
45
What should you do if you do not reach an agreement?
Walk away and consider your BATNA
46
What is a clear BATNA's role in negotiation?
It makes you stronger and more prepared
47
What is the purpose of generating options for mutual gain?
To find mutually beneficial solutions
48
How can both parties benefit from a negotiation outcome?
It should be better than their BATNAs and meet interests
49
Fill in the blank: A good outcome satisfies interests on multiple dimensions and is _______.
better than your BATNAs
50
What is the purpose of exploring interests in negotiation?
To achieve joint understanding of the situation
51
What type of silence is beneficial in negotiation?
Thoughtful/intentional/active silence
52
What should you do if stuck on positions during a negotiation?
Use a curious stance to explore underlying interests
53
What are the primary elements of a procedurally just process?
* Opportunities for participation * Consideration of persons' views * Neutrality of forum * Trust in decision-makers * Dignified and respectful process
54
What is the difference between a dispute and a conflict?
Dispute: shorter-term disagreement; Conflict: longer-term deep-rooted problems
55
What are some causes of conflict according to Shapiro and Fisher?
* Autonomy * Feeling appreciated * Affiliation * Status * Fulfilling roles and activities
56
True or False: A procedurally just process can enhance satisfaction regardless of the outcome.
True
57
What is the primary purpose of client interviewing in law?
To get and give information and decide on the best course of action
58
What is a key skill required in client interviewing?
Active listening
59
What are the steps involved in litigation?
* Pre-litigation * Commencement * Pleadings * Discovery * Pre-trial conference * Preparation for hearing * Hearing * Judgment * Enforcement/appeal
60
What is a major risk of litigation?
It imposes a solution rather than reaching a consensus
61
What strategy should you employ to maintain effective communication during negotiation?
Prepare and practice your message while being ready to listen
62
What does 'mentalizing' refer to?
The capacity to understand behavior in terms of mental states
63
Fill in the blank: It is important to establish a _______ relationship during negotiations.
good working
64
What is the role of independent criteria in evaluating negotiation options?
To judge the fairness of an option or process
65
What is the importance of summarizing in negotiations?
To reflect mental states/interests rather than positions
66
What should you do to ensure a dignified negotiation process?
Maintain politeness and respect throughout
67
What is the significance of establishing common topics in the agenda?
It helps to identify mutual interests and keep the discussion focused
68
What is the goal of option evaluation in negotiation?
To identify and refine mutually agreeable ideas
69
What is one effective strategy for closing a negotiation?
Comment on each other's work and check next steps
70
What is the main characteristic of public litigation?
Based on strict, uniform compliance with the law ## Footnote Public litigation is formal and typically inflexible, focusing only on legal issues without room for personal interests.
71
What is a significant risk of litigation?
Involves imposing a solution rather than parties reaching a consensus themselves ## Footnote This adversarial process often results in a clear winner and loser.
72
What is one of the main differences between litigation and dispute resolution (DR)?
DR allows people to tell their stories ## Footnote This is important for understanding the emotional and experiential impacts of the dispute.
73
What is the aim of letter writing in negotiations?
To create a mood for constructive resolution ## Footnote It invites the other party to negotiate in an interest-based manner.
74
What are the hallmarks of mediation?
* Self determination * Confidentiality * Voluntariness * Empowerment * Procedural justice * Parties’ own solution ## Footnote These principles ensure that mediation is a participant-driven process.
75
What is the focus of facilitative mediation?
Facilitating communication between the participants ## Footnote It encourages parties to explore their interests without the mediator providing legal advice.
76
What are the opportunities presented by facilitative mediation?
* Creative problem solving * High quality outcomes * Lower costs * Preserves relations or amicable separation ## Footnote Facilitative mediation can lead to better long-term resolutions.
77
What is a challenge of facilitative mediation?
Can be time consuming ## Footnote Practitioners might also find it uncomfortable to discuss interests and emotions.
78
What is the primary goal of evaluative mediation?
Efficient delivery of speedy settlements ## Footnote This type of mediation focuses on resolving disputes according to rights and substantive issues.
79
What is a challenge of evaluative mediation?
Parties might perceive procedural injustice ## Footnote This can occur if the mediator's involvement is seen as biased.
80
What does settlement mediation focus on?
Achieving a settlement by compromise ## Footnote It is less hands-on than evaluative mediation.
81
What is shuttle settlement mediation?
Mediator shuttles between rooms carrying information and offers ## Footnote This is suitable when there are safety concerns between parties.
82
What is the role of a conciliator?
Advisory, suggesting options for resolving issues ## Footnote Conciliators may also encourage participants to reach an agreement.
83
What is the purpose of pre-mediation?
To meet with parties individually before mediation ## Footnote This helps prepare parties and identify any safety concerns.
84
What should the first section of a pre-mediation meeting focus on?
Encouraging parties to share their story/experience ## Footnote Understanding their perspective helps build trust.
85
What is the importance of monitoring mentalizing capacity?
To identify any impaired mentalizing during mediation ## Footnote This aids in predicting challenges that may arise.
86
What are the key traits of international commercial arbitration?
* Time * Cost * Professionalism * Fair and final ## Footnote These traits make arbitration a preferred choice in many trade sectors.
87
What is party autonomy in arbitration?
Freedom and flexibility in the procedure ## Footnote Parties can determine the number of arbitrators and the process of appointing them.
88
What is the main objective of the Commercial Arbitration Act?
To facilitate fair and final resolution of commercial disputes ## Footnote It aims to provide cost-effective and informal arbitration procedures.
89
What are the advantages of arbitration?
* Selection of arbitrator * Private * Informal * Flexible * Faster settlement ## Footnote These advantages make arbitration appealing for complex disputes.
90
What are some disadvantages of arbitration?
* Cost effectiveness? * Natural justice? * Lack of party participation ## Footnote These factors can undermine the perceived fairness of the arbitration process.
91
What is the promise of arbitration?
To resolve disputes privately, inexpensively, informally, and quickly ## Footnote It aims to provide party control over the process.
92
What is the difference between arbitration and mediation?
Arbitration can be win-lose; mediation focuses on preserving relationships ## Footnote Mediation allows for collaborative resolution rather than a strict judgment.
93
What is binding mediation?
A combined process where mediation leads to a binding resolution ## Footnote This can enhance the likelihood of settlement.
94
What is a challenge of combined arbitration and mediation processes?
Confidential information may influence arbitrator’s deliberations ## Footnote This could undermine the fairness of the arbitration process.
95
What is a blended and combined model in dispute resolution?
A model that integrates various dispute resolution processes to enhance outcomes.
96
Define Binding Mediation.
A mediation process where the mediator's decision is binding on the parties.
97
What is Facilitative arbitration?
A form of arbitration that encourages parties to reach a settlement by facilitating discussions.
98
What does Med-arb (same practitioner) entail?
The sequential use of mediation followed by arbitration by the same practitioner.
99
What is Med-arb (different practitioners)?
A process where mediation and arbitration are conducted by different practitioners.
100
Explain Arb-med-arb (same practitioner).
A sequence of arbitration, then mediation, followed by arbitration again with the same practitioner.
101
What characterizes Arb-con-arb (same practitioner)?
A process that includes arbitration followed by conciliation and then arbitration again with the same practitioner.
102
What is MEDALOA?
Mediation and Last Offer Arbitration, which can involve the same or different practitioners.
103
List some benefits of using combined dispute resolution methods.
* Preserving relationships * Faster resolution of the dispute * Lower costs * High-quality outcomes * Obtaining an enforceable award
104
Identify challenges associated with combined methods.
* Lack of familiarity and confidence in processes * Unwillingness to share information candidly * Inhibited conduct of arbitrator/mediators * Events causing fairness concerns * Influence of confidential information * Possible procedural and natural justice issues

Ethical Dispute Resolution (1 decks)

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