Alternative Dispute Resolution Flashcards
(188 cards)
1
Q
What is Alternative Dispute Resolution (ADR)?
A
A range of processes for resolving disputes outside of traditional court proceedings.
2
Q
What is a solicitor’s duty regarding ADR?
A
To advise clients on available ADR options, considering the dispute’s nature and the client’s commercial interests.
3
Q
What is negotiation?
A
A communication process between parties intended to reach a compromise or agreement.
4
Q
What is mediation?
A
A confidential process facilitated by an impartial third party (mediator) to help parties reach a resolution; the mediator has no binding power.
5
Q
What is arbitration?
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A process where a dispute is resolved by an impartial adjudicator whose decision is final and binding; parties agree to oust court jurisdiction.
6
Q
When does the question of arbitration typically arise?
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During contract negotiation (arbitration clause) or after a dispute arises (agreement to arbitrate).
7
Q
What are the advantages of arbitration?
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Privacy, easier enforcement in some jurisdictions, choice of specialist adjudicator, flexibility.
8
Q
What is Med-Arb?
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A process starting with mediation; if no resolution, it moves to binding arbitration.
9
Q
What are ENE, expert appraisal, and expert evaluation?
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Processes where an independent party provides a non-binding assessment of the matter.
10
Q
What is the outcome of ENE?
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A non-binding impartial ‘opinion’ to influence future settlement discussions.
11
Q
Who can be an evaluator in ENE?
A
A lawyer or an expert in a relevant field (e.g., medical, engineering).
12
Q
What is expert determination?
A
A process where an independent expert on the subject matter is appointed to make a binding determination on the dispute.
13
Q
How is the procedure in expert determination determined?
A
By the contract between the parties.
14
Q
When is expert determination particularly suitable?
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For disputes requiring technical knowledge but may not be suitable for credibility issues or if parties want a full hearing.
15
Q
What is the key difference between expert appraisal and expert determination?
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Expert appraisal is non-binding; expert determination is binding.
16
Q
What is conciliation?
A
A process where an independent neutral third party helps parties resolve their dispute; usually facilitative (like mediation) but can be evaluative (like ENE).
17
Q
Is the term ‘conciliation’ clearly defined?
A
No, its meaning is not clear, so parties must understand the specific process involved.
18
Q
How does conciliation often arise?
A
It often forms part of a statutory or other regulatory scheme, which may dictate the conciliator and process.
19
Q
Which ADR process does not involve a third party?
A
Negotiation.
20
Q
Which ADR processes involve a non-binding third party?
A
Mediation, Early neutral evaluation / expert appraisal / expert evaluation / conciliation.
21
Q
Which ADR processes involve a binding third party?
A
Expert determination, Arbitration.
22
Q
Why is ADR important due to court expectations?
A
The court expects parties to act reasonably in considering and engaging in ADR and can impose sanctions for unreasonable refusal.
23
Q
How can ADR help preserve or create better relationships?
A
It allows consideration of business relationships, reputation, and emotions, enabling maintenance or improvement of relationships.
24
Q
How can ADR be less expensive than litigation?
A
Successful ADR can lead to resolution with lower costs compared to lengthy court proceedings.
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How can ADR save time compared to litigation?
Appropriate ADR can lead to a quicker resolution than the often lengthy court process.
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How does ADR offer greater privacy/confidentiality?
ADR processes are generally private and confidential, unlike potentially public court proceedings and documents.
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How can ADR be less disruptive to clients?
Processes like mediation may require less document searching, internal meetings, and court attendance than litigation.
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How can ADR offer a wider range of outcomes?
Settlements can be tailored to parties' interests, not limited by court powers.
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How can ADR outcomes reflect risk?
In non-binding ADR, settlements can account for the probability of success rather than a definitive judgment.
30
How do parties have greater control in ADR?
They can choose the third party (mediator, arbitrator) unlike the court process where the judge is assigned.
31
How does ADR allow for greater party involvement?
Clients often have more opportunity to participate and have their say, unlike the potentially alienating court process.
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What is the key factor in choosing a form of ADR?
Individual circumstances of the case.
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What should be considered when choosing ADR?
Advantages of ADR (relationship preservation, speed, privacy, etc.) relevant to the client's needs.
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In a commercial dispute with a good relationship, reputational risk, no technical/legal complexity, and desire for speed, which ADR is recommended?
Mediation, after considering if informal negotiations fail.
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Are many cases unsuitable for ADR?
Very few; most concerns can be overcome with appropriate choice and timing of ADR.
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What is the role of lawyers regarding ADR?
Ensure client awareness of options, help pursue desired ADR, and act within settlement authority (involving client in final approval).
37
List the main types of ADR.
Negotiation, Mediation, Early neutral evaluation / expert appraisal / expert evaluation, Expert determination, Arbitration.
38
How do ADR types differ in third-party involvement?
Some have no third party (Negotiation), some have a non-binding third party (Mediation, ENE, Conciliation), and some have a binding third party (Expert Determination, Arbitration).
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List the key advantages of ADR.
Saving time and money, privacy and confidentiality, greater empowerment and involvement of parties, broader range of potential outcomes.
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What is the key duty of legal representatives regarding ADR?
To consider and advise their clients in relation to ADR options.
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How might a contract specify ADR timing?
It may mandate ADR (e.g., expert appraisal) before commencing court proceedings.
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How does the type of ADR affect timing?
Some types, like arbitration, are usually pursued before court proceedings.
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What general factors influence ADR timing?
Balancing cost saving, relationship impact, information gain (earlier) with better understanding of cases and evidence (later).
48
Why is earlier ADR better for cost saving?
Greater potential for saving costs if settlement is reached early.
49
How can earlier ADR benefit relationships and information?
Can improve relationships and provide useful information (e.g., ENE opinion) even without settlement.
50
Why might later ADR be better for understanding the case?
Parties have a clearer grasp of each other's arguments (though this should be evident by statements of case).
51
Why might later ADR be better for understanding evidence?
Parties have a better understanding of available evidence (though waiting for all evidence is rarely justifiable).
52
What is a risk of engaging in ADR too early?
Incurring costs if the dispute wasn't genuine and wouldn't have been pursued.
53
How do pre-action protocols influence ADR timing?
They require parties to consider ADR.
54
How does Precedent H (costs budget) influence ADR timing?
Guidance requires elements relating to negotiations and advising on settlement.
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What do Directions Questionnaires require regarding ADR?
Confirmation that settlement need, options, and cost sanctions have been explained; option to request a stay for settlement; reasons for not seeking a stay.
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What is the court likely to ask about ADR at a CMC?
What steps parties have taken to explore ADR.
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What powers does the court have at a CMC to encourage ADR?
Give directions aimed at encouraging ADR; stay proceedings.
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What is the court's duty regarding ADR in case management (CPR 1.4(2)(e))?
To encourage and facilitate ADR if appropriate.
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What general powers does the court have to encourage ADR?
Provide information, stay proceedings, or order parties to engage (ensuring no impairment of hearing right and proportionality).
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What is the usual costs order in English courts?
Unsuccessful party pays the successful party's costs.
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Is the usual costs order absolute?
No, costs are always at the court's discretion.
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What factor does the court consider in costs orders that relates to ADR?
The conduct of the parties, including conduct before and during proceedings (including pre-action protocols).
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How does the court use costs to encourage ADR?
By rewarding parties who engage positively in ADR.
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How does the court use costs to discourage poor ADR behaviour?
By penalising parties who unreasonably refuse to engage in ADR.
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Who bears the burden of proving unreasonable refusal to engage in ADR for costs penalties?
The unsuccessful party.
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What factors does the court consider when assessing if a refusal to engage in ADR was reasonable?
Nature of dispute, merits of the case, extent of other settlement attempts, proportionality of ADR costs, potential prejudice from delay, reasonable prospect of success of ADR.
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Does the court penalise a successful party for simply failing to suggest ADR?
No, not usually, unless it breaches a court order or pre-action protocol.
68
How is silence in the face of an ADR offer likely to be treated regarding costs?
Likely to be considered unreasonable and sanctioned (unless already in ADR).
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What should a party do upon receiving an ADR offer?
Consider merits with advisors, respond promptly in writing with reasons, explain conditions for agreeing to ADR, rarely say ADR is never appropriate, mark letter 'open' or 'without prejudice save as to costs', consider separate confidential note of refusal reasons.
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What other procedural steps can the court take to encourage ADR?
Order a stay of proceedings for ADR exploration.
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What other procedural steps can the court take to encourage ADR?
Direct parties to consider ADR and explain their thinking.
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What specific direction might the court give regarding ADR consideration and witness statements?
Requirement to serve a witness statement explaining reasons for not engaging in proposed ADR (not shown to trial judge until costs).
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What is the purpose of requiring a witness statement for refusing ADR?
Creates a record for costs consideration and encourages identification/overcoming of obstacles to ADR.
74
Summarise the pros and cons of engaging in ADR early versus late.
Early: greater cost saving, better relationships/information. Late: better understanding of case/evidence (though earlier often outweighs later).
75
What does the CPR require regarding ADR?
Parties must consider ADR as per pre-action conduct directions and protocols, and as part of case management.
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How can the court penalise unreasonable refusal to engage in ADR?
Through costs orders.
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What other powers does the court have to encourage ADR?
Staying claims, ordering engagement in ADR, and other procedural steps.
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What is mediation?
A confidential process where an impartial third party (the mediator) facilitates dispute resolution; the mediator has no binding decision-making power.
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Describe the typical mediation process.
Parties (with legal reps) in separate rooms, mediator moves between them conveying offers and guiding reflection on positions and alternatives.
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What is the confidentiality of mediation?
The content remains confidential and is not disclosed to the court if no resolution is reached (though the fact of mediation can be).
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What is the significance of 'without prejudice' privilege in mediation?
Substantive discussions cannot be referred to in later litigation or arbitration proceedings.
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What are the advantages of mediation in terms of speed and cost?
Can be quick and cheap, often requiring only one day, leading to clear cost savings.
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How can settlement discussions be tailored in mediation?
They are not constrained by court authority and can consider business relationships, reputation, and emotions.
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Why might clients prefer mediation to litigation?
Greater opportunity for involvement and having their say; the aim is for parties to reach their own decisions.
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What is required for mediation to work effectively?
Parties must be committed to the process, and those with authority to settle must attend.
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Even if no settlement is reached at the mediation, what benefits might still arise?
Focus on issues, assessment of costs risks, and potential re-establishment of communication.
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What is a potential client concern about offering to mediate?
Fear that it may be seen as a sign of weakness (though context-dependent).
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What is a clear disadvantage of mediation?
It involves time and expense.
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What are mediation contract clauses?
Clauses in commercial contracts requiring parties to engage in mediation for disputes.
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What is the intended purpose of mediation contract clauses?
To increase the chances of settling disputes before resorting to litigation.
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How has the enforceability of ADR clauses evolved?
Historically difficult due to uncertainty; Cable & Wireless case established enforceability if a specific, well-known procedure is identified.
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What happens if there is no mediation contract clause?
Parties can still choose to mediate once a dispute arises.
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Once parties agree to mediate, what are the next steps?
Agree on the mediator and the mediation process.
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Is mediation suitable for small claims?
Yes, and claims under £10,000 are often referred to a free HMCTS mediation service (with exceptions).
99
What is a key role of the mediator?
To focus parties on the problem and commercial settlement, not just legal rights.
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How does a mediator help parties see the other side's case?
By enabling them to see it objectively and realistically due to their neutral position.
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What does the mediator ensure parties have considered?
The expensive alternatives to settlement.
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How does the mediator assist with negotiations?
By keeping momentum, dissipating emotional elements, and focusing on issues.
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How does the mediator facilitate communication?
By avoiding confrontational styles, e.g., making opening offers, conveying apologies.
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What is a crucial aspect of the mediator's conduct?
Avoiding any conflict of interest.
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What must the mediator avoid in their interactions?
Appearing to favour one side over the other.
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What must the mediator avoid regarding pressure on parties?
Inappropriately pressuring parties into mediation or settlement (but not opining on fairness).
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What must the mediator uphold regarding information?
Keeping the fact and details of mediation confidential.
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When must the mediator terminate the mediation?
If it or any settlement becomes illegal, unenforceable, or impossible.
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What must the mediator ensure regarding agreements and processes?
That the parties understood the mediation agreement, process, and settlement terms.
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From what backgrounds do mediators come?
Various professional backgrounds, including law, industry, and commerce.
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What should be considered when selecting a mediator?
Whether they have relevant knowledge of the sector or industry.
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Name some organizations that help find suitable mediators.
CEDR, ICC, Academy of Experts, ADR Net.
113
What are the benefits of entering into a written mediation agreement?
Ensures formality, avoids misunderstandings, assists court enforceability, may be required for insurance, can exclude mediator liability.
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What is important to consider regarding confidentiality in the agreement?
Explicitly addressing the mediator's obligation and whether information shared separately can be disclosed.
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To whom does without prejudice privilege belong?
The parties to the mediation, not the mediator; only waivable by all parties.
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Can a mediator be called to give evidence?
Common practice to state in the agreement that the mediator cannot be called.
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What might parties want to agree about documentation?
Details of required documents in advance of mediation (mediation bundle, position statements).
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What is a mediation bundle?
A set of papers (often including a case summary) shared by both parties and the mediator.
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What are position statements?
Documents indicating perceived case strengths, objectives, and/or initial settlement positions.
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What is a separate note for the mediator?
Confidential information for the mediator not to be shared with the other party.
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What is the solicitor's role in preparing for mediation?
Legal analysis, advising on alternatives and prospects, exploring acceptable settlement, advising on attendees.
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Who ideally should attend the mediation?
A representative of each party with authority to settle.
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How might the mediator be involved in the preparation stage?
Ensuring readiness, understanding, and in complex cases, establishing the framework and timetable.
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How does the mediation typically begin?
With a joint session where both parties are in the same room.
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What happens during opening statements?
Each party (often through reps) makes a statement, often drawing on the position statement, indicating their position and desire to settle.
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What matters does the mediator typically address in their opening address?
Objectives, neutrality, procedural rules, confidentiality/privilege, status of any agreement.
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What happens after the joint session?
Parties often move to separate rooms, with the mediator moving between them ('shuttle diplomacy').
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What agreement should be in place regarding confidentiality in break-out sessions?
Whether matters discussed separately can be shared with all parties or remain confidential unless permission is given.
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Who should ideally take the lead role in mediation?
The business person/client, giving them control over solving their problem.
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What is the legal representative's role during mediation?
Protecting the client's position while supporting negotiation, identifying settlement opportunities, and assisting with risk assessment (BATNA/WATNA).
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How does the mediator assist each party in break-out sessions?
By helping them reflect on their position and their opponent's, and conveying offers.
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What is 'evaluative mode' or 'reality testing' by the mediator?
Challenging assumptions or referring to case law/precedent to encourage reflection (but not giving their own opinion).
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Is it typical for the mediator to propose settlement terms?
Generally not, as the terms should come from the parties themselves (though they may do so if requested or allowed in the agreement, but it's unusual).
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What care needs to be taken regarding the order and timing of meetings?
Ensuring neither party feels less favoured.
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Might there be further joint sessions after break-outs?
Yes, if the mediator believes it would be useful.
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Can parties negotiate directly during mediation?
Yes, at any point, either themselves or through their representatives.
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What happens if all issues are settled?
A settlement agreement is drawn up, usually by the solicitors.
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What happens if only some issues are settled?
A settlement agreement is drawn up for those issues, and further steps for remaining issues are agreed (e.g., further mediation, arbitration, litigation).
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How else might mediation end?
One or all parties may terminate, or the mediator may terminate the process.
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When does a settlement agreement become binding?
Often upon being reduced to writing and signed by both parties (prudent to include this provision).
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Is it typical for the mediator to draft the settlement?
Unusual.
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What is the next step if a settlement agreement is reached?
Parties and their legal representatives ensure its terms are complied with.
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What should happen if no full settlement is reached?
Explore whether momentum can be capitalised on to formulate new settlement proposals.
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Might the mediator have a continuing role after settlement?
Yes, if specified in the settlement documentation, to assist with any issues in carrying out obligations.
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How is a settlement agreement enforced if litigation was pending?
It can be incorporated into a 'consent' order and enforced as a court order.
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How is a settlement agreement enforced if no court proceedings were issued?
By starting court proceedings for breach of contract (enforced as a contract).
147
Summarise the definition of mediation.
Confidential process, impartial third party (mediator), facilitates resolution, no binding power.
148
Summarise the key advantages of mediation.
Quick, cheap, focuses on broad interests (not just legal rights), considers relationships/reputation/emotions, allows client involvement.
149
Summarise the key features of mediation (preparation).
Choosing mediator, mediation agreement (role, confidentiality, practicalities), detailed analysis, document exchange.
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Summarise the key features of mediation (attendance).
Joint sessions, separate rooms, mediator movement.
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Summarise the key features of mediation (settlement).
Formally recording any agreement.
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Summarise the mediator's role.
Helps parties see both sides objectively, considers alternatives, conveys offers, maintains momentum and positivity.
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What is Early Neutral Evaluation (ENE)?
A non-binding and confidential assessment of a dispute provided by an independent and neutral evaluator (often a QC or retired judge) early in the process.
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When is ENE most effective?
Usually most effective in the early stages of a case before significant costs are incurred, but can be attempted at any stage.
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What are the potential benefits of ENE?
Provides a realistic appraisal of cases, can break deadlocked bargaining positions, and may assist future negotiations due to the opinion of a respected neutral.
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Can one party request ENE alone?
Yes, but it is rare and the evaluation may carry less weight with the non-participating party.
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Can a judge provide ENE?
Yes, under CPR 3.1(2)(m).
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When is ENE particularly useful?
In disputes where one party has an unrealistic view of their prospects but is still open-minded to an independent evaluation.
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Are there specific procedural requirements for ENE?
No, the process is based on the agreement between the parties or as determined by the evaluator.
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What matters might parties agree on for ENE?
(a) Issues for the evaluator, (b) Documentation/information provision, (c) Whether a hearing is needed and its format, (d) Whether the evaluator will give reasons.
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What are alternative terms for ENE?
Expert appraisal or expert evaluation.
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What is conciliation?
A process involving an independent neutral third party in helping parties resolve their dispute; usually facilitative but can sometimes involve evaluation.
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Is the term 'conciliation' clearly defined?
No, it has no clear meaning, so parties must understand the specific process involved.
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How does conciliation relate to other ADR forms?
Details of mediation and ENE apply by analogy depending on the specific nature of the conciliation.
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How does conciliation often arise?
It often forms part of a statutory or other regulatory scheme, which may dictate the conciliator and process.
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What is an example of a conciliation service?
ACAS (Advisory, Conciliation and Arbitration Service) in employment disputes.
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What is expert determination?
An adjudicative process where an independent expert on the subject matter is appointed by the parties to reach a binding determination.
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When is expert determination typically agreed?
Often provided for in commercial agreements (agreed in advance) but can be agreed after a dispute arises.
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When is expert determination likely to be attractive?
For disputes requiring technical knowledge but may not be suitable for issues of credibility or if parties want a full hearing.
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Who determines the expert and the process?
The identity of the expert and the process are a matter for agreement by the parties (or they may allow the expert to determine the process).
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What does the expert determination process usually involve?
Exchange of written submissions, supporting documentation, and possibly a hearing with advocacy and/or witness examination.
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Can the expert make an order as to costs?
No, unless the parties specifically grant them such authority in the contract.
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What is the effect of a final and binding expert determination?
It cannot be appealed, and the parties must comply with it.
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How is an expert's decision enforced?
Like a contractual agreement, through court enforcement of contracts (not like a court order or arbitral award).
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Does the Arbitration Act 1996 apply to expert determination?
No, the process is based solely on the agreement between the parties.
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Does the court have a supervisory role in expert determination?
No, unlike experts appointed to provide evidence to the court (CPR 35), the expert is not subject to court supervision.
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When might the court get involved in expert determination?
To interpret disputed provisions of the agreement or if there's a dispute about whether the expert acted in accordance with the agreement.
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How are challenges to an expert's award typically commenced?
Using the Part 8 procedure.
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Can an expert be liable?
Yes, in negligence/breach of contract, unless an exclusion clause exists and survives relevant controls.
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What are the potential consequences of commencing court proceedings despite an expert determination agreement?
(a) The innocent party may be entitled to damages for breach of contract; (b) The Court might stay the court proceedings.
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What factors does the court consider when deciding whether to stay court proceedings despite an expert determination agreement?
(i) Compliance with pre-action protocol, (ii) Suitability of the ADR mechanism, (iii) Costs and speed compared to court, (iv) Conduct of the parties, (v) Overriding objective, (vi) Whether some part of the dispute falls outside the agreement.
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Summarise the key aspects of Early Neutral Evaluation.
Non-binding, confidential assessment by a neutral evaluator (often legal expert), early stage focus, procedure agreed by parties, court can provide ENE.
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Summarise the key aspects of Conciliation.
Independent neutral third party helps resolve dispute, often facilitative, meaning not clearly defined so understanding the specific process is crucial, often part of statutory/regulatory schemes.
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Summarise the key aspects of Expert Determination.
Binding determination by an independent expert, scope and procedure agreed by parties, court may stay proceedings if agreement is breached.
