ch 5 pt 1

Question 1

what are the 6 ways of protection of communications in ADR?

Answer 1

professional duty of confidentiality, legal professional privilege, without prejudice, contractual confidentiality clause, standards of ADR providers, regulatory standards

Question 2

4 difficulties that can arise with confidentiality?

Answer 2

dispute about terms of settlement need reference to ADR, challenge a settlement reached improperly, allegation of potential negligence or breach of professional conduct, if ADR not successful need ADR as evidence of something

Question 3

what argument will be made in relation to disregarding confidentiality?

Answer 3

court look at some material as it’s in the interest of justice

Question 4

in most cases will parties be successful in arguing interest of justice?

Answer 4

no confidentiality will prevail

Question 5

is there a duty of disclosure in ADR?

Answer 5

no

Question 6

when does duty of disclosure arise in ADR?

Answer 6

pre-action protocol, agreed between parties, court order

Question 7

if not provided in agreement or preaction protocol can parties keep that info private?

Answer 7

yes

Question 8

why is sufficient sharing of information necessary?

Answer 8

3rd party needs to assess strength of case

Question 9

ways sufficient information can be shared?

Answer 9

agreement, voluntary basis, reaction to developments in process

Question 10

how is mediation governed?

Answer 10

mediation agreement or published rules of the mediation provider

Question 11

will parties agree on info to give to mediator?

Answer 11

yes but mediator not to reveal

Question 12

how is disclosure dealt with in adj ADR?

Answer 12

parties agree on extent of mutual disclosure

Question 13

what happens in adj ADR if no agreement on disclosure?

Answer 13

tribunal will determine scope of disclosure

Question 14

can one party only provide info to the arbitrator?

Answer 14

no

Question 15

how is info disclosed for other kinds of evaluation and determination?

Answer 15

parties agree

Question 16

issue with how parties can agree to infor disclosed in other types of determination and evaluation?

Answer 16

each party can give info to 3rd p but not each other=undermine trust

Question 17

why is it strategic disclosing docs?

Answer 17

provide enough info to show strength of case, protect what is sensitive or private

Question 18

what protects info given by client to lawyer?

Answer 18

professional duty of confidentiality

Question 19

how does principle of legal professional privilege work?

Answer 19

protecting from disclosure all communications between lawyer and client where purpose is to give legal advice

Question 20

how does legal advice privilege work?

Answer 20

only extends to communication between lawyer and their client, not communications with other professionals even if they give legal advice

Question 21

do the principles of legal privilege cover ADR?

Answer 21

Yes

Question 22

who can waive legal professional privilege?

Answer 22

client

Question 23

what must a lawyer do if they want to share info?

Answer 23

get permission from client in advance

Question 24

does the court tend to override professional privilege?

Answer 24

no

Question 25

when can info not be privileged?

Answer 25

info is otherwise disclosable

Question 26

what is the test for privilege when communicating with 3rd parties?

Answer 26

where info or advice sought from 3rd party privilege may be claimed if sole purpose was to assist in litigation

Question 27

will info communicated to ind 3rd party in ADR attract legal professional privilege?

Answer 27

no protected by duty of confidentiality

Question 28

intention of without prejudice?

Answer 28

protect from disclosure any communications made between parties with a view to settling (can't be used in litigation/courts)

Question 29

does info need to be marked as without prejudice to be protected?

Answer 29

no

Question 30

does without prejudice still apply if settlement reached or proceddings have started?

Answer 30

yes

Question 31

when can info said in ADR be used?

Answer 31

circumstances not in court, e.g. counsel-to-counsel negotiation

Question 32

who can waive without prejudice?

Answer 32

parties but it is joint so can't be waived by only 1

Question 33

can a third party claim protection if parties waive without prejudice?

Answer 33

no but usually they insert their own confidentiality clause

Question 34

can you draw a negative inference from a party refusing to waive privilege?

Answer 34

no

Question 35

what purposes can without prejudice be excluded from?

Answer 35

e.g. without prejudice save as to costs

Question 36

how to exclude prejudice?

Answer 36

expressly state it