Alternative Dispute Resolution Flashcards
(36 cards)
Why must solicitors advise on ADR?
Solicitors are expected to pursue clients’ best interests by considering all appropriate dispute resolution methods, not just litigation.
What are the main forms of ADR?
- Negotiation
- Mediation
- Arbitration
- Med-arb
- Early neutral evaluation (ENE)
- Expert appraisal/evaluation
- Expert determination
- Conciliation
What is negotiation in ADR?
A communication process between parties aimed at reaching a compromise without third-party involvement.
What is mediation?
A confidential process involving an impartial mediator helping parties reach voluntary settlement; the mediator does not impose a binding decision.
What is arbitration?
A binding process where parties agree to submit their dispute to a neutral arbitrator instead of a court; governed by agreement and statute.
What is med-arb?
A hybrid process starting with mediation; if unresolved, the matter proceeds to arbitration with a binding outcome.
What is early neutral evaluation (ENE)?
A non-binding assessment of the dispute by a neutral expert, typically a judge or KC, often used early in proceedings.
What is expert determination?
A binding decision by an independent expert with technical knowledge, often pre-agreed in contracts.
What is conciliation?
A flexible, facilitated process (often part of a statutory scheme) using a neutral third party to help settle a dispute, sometimes evaluative like ENE.
What’s the key difference between expert appraisal and expert determination?
- Appraisal: Non-binding opinion
- Determination: Binding decision
What are the main benefits of ADR?
- Encouraged by the court
- Preserves relationships
- Saves time and costs
- Private and confidential
- Less disruption
- Flexible outcomes
- Parties retain control
- Greater involvement from clients
How does ADR preserve relationships?
ADR allows emotional, reputational, and future business concerns to be considered—unlike litigation.
Why is ADR often cheaper and quicker than litigation?
It avoids prolonged court processes, legal procedures, and extensive evidence preparation.
How is ADR more flexible than court judgments?
ADR allows settlements that reflect risks and commercial realities; court judgments must follow legal rights strictly.
When should ADR be considered?
- As early as possible (for cost/time saving)
- Later stages (for better case/evidence understanding)
- If required by contract
- As part of pre-action protocols
What can the court do to encourage ADR?
- Stay proceedings
- Direct parties to consider ADR
- Impose costs sanctions for unreasonable refusal
What conduct might lead to a costs penalty?
- Refusing to engage in ADR
- Ignoring an ADR invitation
- Delaying ADR near trial
- Failing to engage meaningfully
What does the court consider when deciding ADR-related cost penalties?
- Suitability of ADR for the dispute
- Strength of the party’s case
- Prior settlement efforts
- Proportionality of ADR costs
- Prejudice from delay
- ADR’s potential for success
What are the key features of mediation?
- Confidential and voluntary
- Non-binding unless settled
- Uses a neutral third party
- Focused on parties’ interests
- Often takes one day
What are the advantages of mediation?
- Speed and cost-efficiency
- Confidentiality
- Focus on preserving relationships
- Flexible and interest-based outcomes
- Active client involvement
What are the disadvantages of mediation?
- May be perceived as weakness
- Involves time/cost with no guarantee of success
- Relies on both parties’ willingness to engage
What is the role of the mediator?
- Facilitate discussion and reality testing
- Maintain neutrality and confidentiality
- Help explore risks and alternatives
- Convey settlement offers
How is a mediation set up?
- Choose mediator (industry/legal experience)
- Sign mediation agreement (covers confidentiality, liability, process)
- Prepare bundle, position statements, client analysis
What happens in the mediation itself?
- Joint session (open statements)
- Breakout rooms with shuttle diplomacy
- Settlement discussions
- Optional joint sessions
