Alternate Dispute Resolution Flashcards
(100 cards)
1
Q
What does the Overriding Objective state when it comes to use of ADR?
A
CPR 1.4(e)
It states that the court must encourage the parties to use ADR.
2
Q
Is ADR compulsory?
A
No, in the sense that it cannot be forced but only encouraged by the court. They court may impose sanctions where ADR is not reasonably refused.
The only form of ADR which is Compulsory is early neutral evaluation
3
Q
What are the motivations for the use of ADR?
A
- lower costs
- speed of settlement
- choice of forum
- control of the process
- flexibility of the process
- confidentiality
- wider range of issues and outcomes can be considered
- shared future interests may be protected
- use of problem-solving approach
- risk management
4
Q
How ADR lowers costs
A
There isn’t the use of the judicial process which is expensive
Works if ADR is used at a relatively early stage, the advantage decreases the further the case goes into litigation
Is is potentially expensive if it fails
A cost benefit analysis may be used in order to select whether or not ADR should be used and which form of ADR should be used
5
Q
How ADR helps the speed of settlement
A
Non-Adjudicative ADR or ED can take place very quickly
This helps the personal benefits too
6
Q
Choice of forum of ADR
A
Parties have a wide choice in the mediator or arbitrator etc. it can help if parties wish to have an individual who is specialist in their field. Can also be the fact that they both choose someone they equally respect.
7
Q
Control of process - ADR
A
Parties can agree to processes which suits their dispute.
8
Q
Flexibility of process - ADR
A
As litigation involves standard stages, ADR does not do this in a lot of the non-adjudication processes., negotiation and mediation are very flexible. The processes can vary for that particular dispute. Can be used to deal with issues which are not strictly legal
9
Q
Confidentiality - ADR
A
As court hearings are public, ADR is not.
It is protected with the without prejudice principle
Not done in open hearings, they are private
Could be important for commercial or personal interests
10
Q
Wider range of issues to be resolved - ADR
A
Complex issues can be dealt with, even those which are not pertinent to the dispute in the first place.
Court processes and statements of case can restrict what can be resolved, but ADR like mediation can consider issues outside of the dispute and be dealt with alongside the issues at hand.
11
Q
Shared future interests protected - ADR
A
ADR allows prospective issues to be dealt with as well as those issues which have happened. The court process is rather reactive in nature.
ADR preserves relationships
12
Q
Use of problem solving approach - ADR
A
ADR is more sontructive and use a range of techniques which means parties can get to the root causes of the disputes.
Court process is very entrenched in nature
13
Q
Risk management - ADR
A
Risk may be more directly and cost effectively controlled through constructive and proactive use of ADR
14
Q
What is the criteria for selection of ADR?
A
- the importance to minimise costs
- importance of a fast solution
- how much control a party wants
- the main objectives of the party
- importance of future relationship
- importance of an expert to key issues
- is neutral assistance important
15
Q
When ADR may not be appropriate
A
- the need for a precedent
- importance of a court order
- relevance of interim orders
- evidential rules are important
- strength of the case
- complexity of the case
- high levels of animosity
- power imbalance
- quasi-criminal allegations
- having a day in court
- enforcement may be an issue
16
Q
Role of a lawyer in advising ADR
A
- ensure client is sufficiently aware of ADR
- providing an objective evaluation of ADR options
- advising client on pre-action obligations in relation to ADR
- advising client on obligation in relation to the overriding objective in terms of ADR
- ensure client is aware of the penalties of refusing ADR
- giving proper advice on funding the ADR
- if ADR is selected, advise on the best form
- identify the objective reasons for the client to refuse ADR
- assisting the selection of an independent third party, if needed
- advising which forms of ADR in terms of the strengths of the case
- consider and advise on adjudicative and non-adjudicative ADR
- advise on drafting the terms of settlement
17
Q
What is authority to settle?
A
- where a lawyer is given the permission by the client to reach a specific settlement
- it must be done through very clear instructions and within the parameters set by the client
- lawyers who exceed their permission, will be found to have committed a misconduct
18
Q
Key case to identify where the refusal of ADR is unreasonable/reasonable
A
Halsey v Milton Keynes General NHS Trust
19
Q
What order can the courts give to encourage ADR
A
Ungley Order. This was highlighted in Mann v Mann
20
Q
What form of penalty may be used if ADR is unreasonably refused by a party
A
Penalty may be in a form of costs
21
Q
When can the court encourage the use of ADR?
A
- pre-trial review
- case management
22
Q
Direction questionnaire and ADR
A
Direction questionnaires, when allocating the claim to the right track, must contain the confirmation that the legal representatives have confirmed the many options available to the client of how to settle the claim.
The forms also asks if the client wishes a stay in proceedings to settle the claim.
The court does not have to agree to the decisions made in the DQ. It can order a case management to offer different ways to settle the claim.
23
Q
Staying proceedings for ADR
A
The court may stay proceedings for the parties to attempt ADR
This will last for a month but can be longer in the decision of the court
Parties must update the court as to the result of the ADR that has taken place
Parties can go to the court for a consent or Tomlinson order if settlement has been reached
If settlement has not been reached, then the proceedings will resume after the stay
24
Q
What are the Halsey principles?
A
If the winning party has unreasonably refused to agree to ADR, then the unsuccessful party has to prove the following in order to detract from the general rule of the unsuccessful party bearing the full costs.
The factors to be taken into consideration are:
- the nature of the dispute
- the merits of the case
- the extent to which the settlement methods have been attempted
- whether the costs of ADR are disproportionately high
- whether any delay in setting up and attending ADR would have been prejudicial
- whether the ADR process had a reasonable prospect of success
25
Halsey principles - the nature of the dispute
Whether the dispute was suitable for ADR or not
If it is not suitable for ADR to be used in this dispute, then it is not unreasonable to refuse it.
Technical cases which require a specialist court will not be unreasonable to refuse ADR
26
Halsey Principles - Merits of the case
The party has to reasonably believe that the merits of the case are of such that they will succeed
27
Halsey Principles - Extent to which others settlements have been attempted
Where other offers to settle have been made and rejected are also relevant. Even if it is the unsuccessful party or the successful party.
It is to bear in mind that mediation is often used where other forms of ADR have been unsuccessful
28
Halsey Principles - whether the costs of ADR are unreasonably high
Where the costs of mediation, for example, would cost more than the day in court.
29
Halsey Principles - Whether delay in setting up and attending ADR would be prejudicial
Where ADR has been suggested at a late stage of the litigation. This is very discretionary to the court
30
Halsey Principles - Whether ADR had a reasonable prospect of success
Courts may have regard to the following circumstances:
- relationship of the parties were acrimonious
- where there was ‘insufficient room for manoeuvre to make mediation a venture which mugshot hav real prospects of success in achieving a compromise’
- a party’s attitude shown that they would not comply with ADR
31
Are the Halsey Principles exhaustive list?
No, such things like part 36 orders can have an impact on the reasonable refusal of ADR
32
The claimant’s failure to initiate the ADR process
It is not the case that the claimant simply failed to initiate the ADR process. Both parties are subjected to be expected to do it. It’s not a blame pushing exercise
33
Silence in the offer to engage with ADR
Silence in the invitation of ADR will only be deemed as reasonable in very rare circumstances, where it is blatantly obvious that ADR is not suitable to the type of dispute.
34
Practical steps to avoid sanctions when it comes to ADR
- to and co-operate with ADR
- if refusing ADR, state your reasons and justifications
- do not ignore
- respond promptly
- if it is problems with evidence, highlight those as early as possible
- letters in response to be handled with care
35
Contract clauses concerning ADR
- this may be highlighted contractually
- may be the type of ADR specified to be used
- when to initiate that ADR
- the court is likely to enforce that contractual term
36
Advantages of using ADR at the pre-action stage
- opportunity to save time and costs
- adjudicative ADR will be used immediately and quickly
- some non-adjudicative ADR will be used quickly and resolve the dispute quickly
- ADR may assist in the clarification of issues before it goes to litigation
- constructive approach may be given early meaning that parties wont be too entrenched when it comes to court
37
Disadvantages of using ADR at pre-action stage
- time and money may be wasted if the ADR is unsuccessful
- unsuccessful ADR may make relationships between parties worse
- it may be difficult to evaluate the case properly
- ADR may be used tactically rather then wishing to resolve the dispute
38
When to consider ADR
- general need to review before the issuing of proceedings
- in the directions questionnaires:
- small track cases will give guidance on how to resolve via the use of ADR
- fast and multi tract cases will want an explanation of the use of ADR before it comes to court
39
What can the court do to encourage the use of ADR at an interim stage
Interim orders may be used to facilitate the use of ADR
- court can order a party or party’s representative to attend court to support the use of ADR
- on application of an interim order, court may give directions for ADR to be used
- court can order a trial of a preliminary issue if the rest of the case is to settle
- court can give specific guidance on the progress of a case, giving warnings of not complying with ADR
- several models for interim orders have been developed to help the use of ADR
40
Practical factors which are relevant to timing for ADR
- overriding objective
- position regarding costs
- timeframe for reaching resolution
- issues in the case
- availability of information
- availability and importance of evidence
- importance of interim applications
- strength of a case
- antagonism between the parties
41
What forms of ADR are Adjudicative?
- Arbitration
- Expert (or neutral) Determination
42
What does it mean if a dispute resolution is Adjudicative
Where a binding decision is made by an independent third party
43
What is arbitration?
Involves an independent arbitrator or tribunal considering both sides of a dispute and making a decision on those issues raised by the parties.
Governed by the Arbitration Act 1996
44
What are the three general principles set out in S.1 of the Arbitration Act 1996?
(A) the object of arbitration is to obtain the fair resolution of the disputes by an impartial tribunal without unnecessary delay or expense
(B) the parties should be free to agree how their disputes are resolved, subject only to such safeguards as are necessary in the public interest; and
(C)…the court shall not intervene i unless astute says so
45
Can arbitration be compulsory?
Yes, in the sense that some contracts expressly require arbitration to be used as a form of ADR if disputes arise. The courts will most likely enforce such terms of contracts.
46
Section 9 Arbitration Act 1996
Where there have been legal proceedings brought without the use of arbitration, which is in breach of an arbitration clause in a contract, a stay in proceedings may be brought under this section in order for the party to comply with arbitration clause before the proceedings can commence.
47
How can you appeal an arbitration decision?
Judicial review.
These are very restrictive and limited
S. 68 Arbitration Act 1996 - serious irregularity
S. 69. Arbitration Act 1996 - appeal on a point of law
48
Procedure of arbitration
- preliminary meeting
- pre-trial hearing/conference
- bundles
- no right to oral hearing: arbitrators have the ability to only require oral or written submissions
- the hearing
49
What awards to Arbitrators give?
Either:
- procedural orders
- interim awards or awards on different issues
- final awards
- costs awards
50
How to enforce arbitrator awards?
Either apply to the high court
Or apply under section 66(1) Arbitration Act 1996
51
What is expert determination?
Where an expert, in the area of the dispute, is appointed to make a determination on the issues referred to them about the dispute.
It is a determinative process and not one which is facilitative.
It is not subject to the supervision of the court.
The decison is binding
There can be a term in the parties contract which requires them to use ED
There is no right to appeal ED, and no award can be given
52
Cases which are suited to Expert Determination
Those involving a high level of technicality. This can be technical commercial matters or construction etc.
53
How to appoint the expert determinator
Can be done on the agreement of the parties
Can be done through a professional body of a determination service.
54
What is needed to be sent to an expert for ED?
- written submissions from each party setting out their case
- copies of relevant documents
- submissions to be made at meeting or hearings, if neccessary
- parties agree for expert to conduct their own lines of enquiry
55
Nature of an expert determination decision
It is a binding decision
Courts will uphold the decision unless grounds for setting ti aside are established
Decision does not take the forms of an award or an order, unlike arbitration
56
Expert determination clause in a contract
This can be breached if parties don’t comply with ED. The courts will be likely to uphold it, unless the clause is poorly drafted.
Court can have a stay in proceedings if there is a breach in an ED clause.
57
How to challenge an Expert Determination
You can apply under part 8 proceedings
58
How to enforce an expert determination
It is not one which can be enforced in a court order sense, the party will have to make their claim through a breach of contract claim
59
what is Early Neutral Evaluation?
it is a private, non-binding assessment and evaluation of the facts, evidence and legal merits of the case.
60
status of the ENE decision
without prejudice and non-binding
61
what is the process of ENE?
evaluation is usually given after the evaluator has considered the materials provided by the parties and submissions made by or on behalf of the parties, orally or in writing.
ENE can take place within the court system, in which case the evaluation is usually carried out by a judge. ENE can also take place outside the litigation process, but parallel with it, and even before litigation has been commenced at all.
62
when is ENE most effective?
at an early stage of the dispute
63
why is ENE different to mediation?
mediation is facilitative and ENE is an advisory and evaluative process
64
what are the similarities between ENE and mediation
- appointment of a third party.
- private and confidential processes, and
- the evaluator must be impartial.
If the evaluator is appointed using an ADR provider, he or she will operate under a code of conduct that may be the same or similar to the code of conduct that governs the conduct of mediators.
65
when should ENE be employed?
ENE is usually employed in the early stages of a dispute, but could be used at any stage. ENE employed at the early stages of a case can assist settlement by mediation, and can be carried out before or even during the mediation, and before or at any time during the process of litigation. ENE can also be used to settle disputes that arise during an assessment of costs after the main proceedings have been included
66
factors to encourage the use of ENE
- when a party has taken a more entrenched view of the dispute
- where there is technical law and issues which require a specialist
- useful in that it enables each party to appreciate the strengths and weaknesses of the case and this in turn can encourage and lead to settlement.
67
positives to using ENE
- flexible
- parties have a lot of control in appointing the ENE and the am out of information they are presented with and how the process should be carried out by giving instructions to the evaluator.
68
process of ENE
- written submissions to the evaluator. this can be done orally
- evaluator will evaluate the evidence and law bearing in mind the submissions made.
- evaluator makes their decision which may or may not be adhered to by the parties.
69
ENE - Judicial Evaluation
ENE can be carried out by a judge, in any court, with the aim of helping the parties to settle the case.
Judicial ENE can give the parties some indication of the likely outcome at trial.
Judicial evaluation can have a strong persuasive effect on the parties, who may then adopt the judge’s recommendations in settling the dispute.
An ENE hearing, conducted by the judge, can provide the parties with guidance on the court’s view of quantum.
70
can ENE be forced?
The court can order ENE pursuant to CPR r 3.1(2)(m) even if one party does not consent to this. CPR r 3.1(2)(m) does not seek to impose a limitation to the effect that the court could only direct an ENE if all the parties consented.
71
what is conciliation?
Like mediation, conciliation is a non-adjudicative, facilitative process. It is conducted on a confidential, without prejudice basis. If it is successful it will result in a compromise agreement, which, like mediation, can cover issues and interests going outside the scope of the original dispute. If it is unsuccessful, the parties can revert to other forms of legal redress, typically through the courts or tribunals.
72
what is mediation?
Mediation is a flexible, cost-effective, confidential process which can be arranged relatively speedily, in which a neutral third party (the mediator) facilitates discussions and negotiations between the parties in dispute within a relatively structured but flexible process, in a formal setting, during a defined period of time, all of which helps to create an impetus for settlement. Mediation has been described as a form of neutrally assisted negotiation. The parties themselves remain in control of the issues they would like to discuss and the outcome, including the terms of any settlement, which need not necessarily be based on the underlying legal rights or obligations of the parties. Instead, the parties, with the assistance of the mediator, can reach a solution which is tailored to their real needs and interests.
73
when is Mediation suitable?
- for all disputes which raise issues capable of being resolved by negotiation
- it can be used for all manner of legal disputes.
- can be used for multi-party disputes
- encouraged by the court (the court may specify mediation)
- general encouragement for ADR is applicable here too.
74
when may mediation not be appropriate?
- when parties have a very bad relationship
- where a final and binding decision is needed
- in debt claims, likely to result in summary judgment
75
the timing of mediation
Mediation can theoretically take place at any stage up to trial and even pending an appeal. The emphasis should be on the parties consensually agreeing on the best time to mediate. The court should try to set a timetable for trial that allows the parties to take part in ADR along the way
better if mediation is done before proceedings have been issued, when the parties have fully defined the issues, disclosed key information and quantified the claim and any counterclaim.
the next best time to attempt it may be shortly after exchange of statements of case or after disclosure of documents.
the later the mediation, the less costs are potentially saved.
76
how will the mediator organise the mediation?
- chair the meetings
- set the agenda
- control the format of the mediation
- decide when discussions will take place
- impose/suggest time limits
- decides whether joint meetings should take place
- prevent interventions from the other side during opening speeches
- control the form of questions
77
how will the mediator act as the facilitator?
- gather information
- help parties identify issues
- encourage parties to treat mediation as their 'day in court'
- help parties listen/communicate
- discourage or diffuse confrontation
- encourage parties to analyse the strengths and weaknesses in their case
- encourage parties to think about BTNA and WTNA
- review negotiations
- encourage common ground between parties
- develop strategies to end deadlock between parties
78
how will the mediator act as an intermediary?
they will be the 'go-between' or 'shuttle-diplomat' during the private meetings with the parties. the parties will negotiate through the mediator, keeping a record of any agreements.
79
duties for a mediator to be ethical
- competence
- Independence and neutrality
- impartiality
- the mediation procedure
- fairness
- confidentiality
- termination of mediation
80
competence of a mediator
Mediators must be competent and knowledgeable in the process of mediation. This should include proper training in mediation skills and the process of mediation, and a system for Continuing Professional Development (CPD) to refresh and update their skills.
81
independence of mediators
A mediator must ensure there is no conflict of interest with any of the parties directly or indirectly affected by the dispute, if there is it should be disclosed immediately to the parties.
There may be some situations in which a mediator should refuse to act even if there has been full disclosure to and consent from the parties, such as circumstances in which the mediator might benefit financially or personally from the outcome of the mediation, or the mediator has had a prior personal or professional relationship with one of the parties to the dispute.
82
impartiality of mediators
mediators should always be impartial when it comes to acting for the parties
83
the mediation procedure - mediator's ethics
The mediator should ensure 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.
84
fairness of a mediator
mediator must ensure there is no undue pressure or that they do not or put undue pressure on any of 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.
However, because the essence of mediation is that the parties make their own decisions about how to resolve their dispute, the notion of fairness would not extend to the mediator ensuring that the terms of any proposed settlement are fair to each of the parties
85
confidentiality of the mediator
mediator must keep confidential all information arising out of or in connection with the mediation, including the fact that the mediation is to take place or has taken place, unless compelled to give full disclosure by law or on public policy grounds.
Any information disclosed in confidence to mediators by one of the parties must not be disclosed to the other parties without permission or unless compelled by law
without prejudice can be removed
86
termination of the mediation - mediator ethics
The mediator should terminate the mediation, and inform the parties (if appropriate) if they believe a settlement to be unenforceable or illegal, or that continuing the mediation is unlikely to result in settlement
87
can the court override the confidentiality of mediation?
Yes. this can be done where it is in the interests of justice to do so.
To permit confidentiality to be overridden in anything other than in very exceptional and limited circumstances will seriously undermine the mediation process.
Where there is a negligence claim made against the mediator or solicitor, then confidentiality may be overridden.
88
what are exceptions of confidentiality when it comes to mediation?
- where disclosure is required by law;
- disclosure is necessary to prevent risk of harm to the public at large;
- disclosure may be necessary if the mediator believes there is a risk of significant harm to the health, life, or well-being of a person or a threat to their safety if confidential information is not disclosed. This can arise particularly in a family mediation concerning children; or
- disclosure is necessary to prevent criminal activity
89
what is protected by the without prejudice rule in mediation?
- oral or written communications between the parties or the parties and the mediator made specifically for the purposes of exploring settlement;
- communications created for the purpose of trying to persuade the parties to mediate;
- information obtained from investigations carried out as part of the mediation process
90
communication which is not protected by without prejudice in mediation
- where without prejudice is waived by all parties
- under fraud and misrepresentation statements
- if documents should be disclosed by the normal rules of disclosure
- the court can refer to the discussions in mediation to determine whether a valid agreement was met.
91
can the mediator rely on the without prejudice principle?
No. if both parties waiver it the mediator cannot rely on it.
92
does legal advice privilege apply In mediation?
Legal advice privilege will also be upheld in mediation and the privilege will not be waived by one party subsequently bringing proceedings against the other party to the mediation to have the settlement agreement reached in mediation set aside on the grounds of economic duress.
93
factors to determine those who are the relevant individuals to attend a mediation?
- Who has direct knowledge of the key issues in the case?
- Who is most closely and personally affected by the dispute or the resolution of it?
- If relevant, who has the necessary technical expertise?
- Does resolution of any particular issue require expert evidence and the attendance of an expert at the mediation?
- Who has authority to settle the dispute?
- What message will the identity and status of the participants send to the other side?
94
what are position statements in mediation?
where the mediator asks each party to provide statements setting out their case, basically a case summary.
It will usually always be required for high-value or complex cases. However, lawyers acting for parties in mediation may consider that it is useful to prepare one even if it is not formally requested by the mediator.
95
what are the key supporting documents for mediation?
there is an agreed bundle which needs to be submitted for mediation which needs to contain:
- statements of case if proceedings have been issued and detailed letters of claim if they have not;
- witness statements that have been disclosed by the parties;
- any expert reports disclosed by the parties;
- case management orders that have been made (so that the mediator understands the procedural timetable governing the dispute);
- Part 36 offers or other offers that have been made but not accepted;
- any relevant key documents that have been disclosed relating to the liability or quantum issues in dispute. Plans and photographs can be a useful visual aid to have available for some types of dispute. It is particularly important to ensure that up-to-date documents are prepared for the mediation in respect of quantum, together with supporting documents such as accounts and receipts;
- any other relevant correspondence between the parties.
96
what are the stages of mediation?
- opening stage
- exploration (or information) stage
- the negotiation (bargaining) stage
- the settlement (closing) stage
97
what is the opening stage in mediation?
This will consist of introductions and each party setting out their formal position in relation to the issues in the case. It will usually take place in the opening joint session (sometimes called a plenary session).
98
what is the exploration stage in mediation?
This can take place partly in open joint meetings and partly in closed private meetings, or exclusively in an open joint meeting or alternatively a closed private meeting, depending on the preferences of the parties, the issues in the case, and the view of the mediator
99
what is the negotiation stage in mediation?
This will almost invariably take place in closed private meetings (sometimes referred to as ‘caucuses’ or ‘closed sessions’) with the mediator acting as broker between the parties.
100
what is the settlement stage in mediation?
This will usually take place in joint meetings between all of the parties and/or between the lawyers of the parties who will have the task of drawing up the agreement.
