Dispute Resolution Flashcards
(34 cards)
What is a limitation period
Limits under which a claim must be brought under Limitation Act 1980
What are the latest amendments to the Civil Procedure Rules as of Nov 21 (update 136)
- The creation of a separate regime within the pilot for ‘Less Complex Claims’ which is described in a new Appendix 5 to PD51U, together with a simplified version of the Disclosure Review Document (DRD) and guidance notes in two new Appendices 6 and 7.
- Multi-party cases will still operate within the spirit of the regime set out in the pilot, however, there is now an express recognition that disclosure in multi-party claims is likely to need a bespoke approach from the court, which is addressed in paragraphs 1.11 and 13.5 of the revised PD51U.
How long is a limitation period
6 years usually but 3 for PI
How long is a limitation period where the damage in negligence is hidden
Negligence claims where the damage is hidden (“latent”), see s14A LA 1980. (6 years from the date of the cause of action OR 3 years from the date of knowledge of the damage (whichever is later), but no later than 15 years from the date of the negligent act or omission.
What are you obligated to do under pre action protocols
The aim here is to try and sort out the issues before going to court/instead of going to court.
Give examples of ADR
- (a) negotiation
- (b) mediation, a third party facilitating a resolution;
- (c) arbitration, a third party deciding the dispute;
- (d) early neutral evaluation, a third party giving an informed opinion on the dispute; and
- (e) Ombudsmen schemes.
How are litigation proceedings commenced
A N1 form served on the Defendant
Does the unsuccessful party have to pay the winning parties costs?
Generally yes
What can you do if damages you are owed are not paid
Apply to the court for enforcement
Who is the Master of the Rolls
◦ The Master of the Rolls was originally responsible for the safe-keeping of charters, patents and records of important court judgments written on parchment rolls. The Master of the Rolls is, by virtue of his office, a judge of the Court of Appeal and is the President of its Civil Division. He is responsible for the deployment and organisation of the work of the judges of the division as well as presiding in one of its courts.
When was ADR acknowledged as a viable method
1998
Key features of ADR
- be formal (eg arbitration) or informal (negotiation)
- include legal representatives or not
- include the intervention of a third party, specialists and experts or not
- be facilitated by an organisation or be ad hoc
- be conducted f2f through meetings, exchange of relevant documents or via technological means - online dispute resolution (ODR)
Give some legal frameworks of ADR
Arbitration Act 1996 – more formal process, most often used commercially/building and construction contracts. If international then will usually specify the below NYC be used.
New York Convention 1958
UNCITRAL ADR Rules (United Nations Commission on International Trade Law)
ICC ADR Rules (International Chamber of Commerce)
Advantages of ADR
- Litigation is often more costly than arbitration/mediation
- Litigation is a lengthier/more time-consuming process than arbitration/mediation
- Litigation/Arbitration based on WIN-LOSE process.
- Mediation (except evaluative) may have a WIN-WIN
outcome - Mediation contributes to reduce conflict
- Mediation contributes to preserving the relationship between the parties
- Mediation can help to deal with the interpersonal aspects of the dispute
- Mediation can assist parties to understand the merits of their case
General ADR disadvantages
May be no outcome/hard to enforce generally/no precedents
What is arbitration
dispute resolution technique where the parties refer their dispute to one or more persons- the arbitrator, arbiters or arbitral tribunal- who issue the decision (the award) by which the parties agree to be bound. The arbitrator is a disinterested person to the dispute. Several aspects of arbitration resemble to litigation. Decision usually binding if a consent order is lodged.
Advantages to arbitration?
- Parties are free to select the arbitrator/tribunal which they consider most appropriate to resolve their dispute. Parties can choose an arbitrator with expertise in the field of the dispute
- Procedure of arbitration is private. Companies may not wish their know-how, strategies etc to be publicised
- Arbitral awards can be enforced easily
- Procedure of arbitration is more flexible than litigation
- Arbitration is usually a speedier procedure of dispute resolution
- Arbitration is the outcome of the agreement between the disputing parties and hence it has a more consensual approach than litigation
- The cost of arbitration is usually (but not always) lower than the cost of litigation
- The location of the hearing can be selected in consideration of the preference/needs of the parties, arbitrator(s), witnesses etc This is not an option in litigation
Disadvantages of arbitration
- Part of the legal sector distrusts arbitration because it does not offer the option of full appeal on the merits of the case and the uncertainty about the quality/ neutrality of the arbitrator(s)
- Arbitrator derives his/her power from the consent of the parties in his/her appointment. The laws of the state may supplement this power of the parties by providing the standards of fairness and procedures for the recognition of an arbitral award
- No precedents
When are arbitration awards not recognised by the courts
- The award is not included or is beyond the terms of the submission (Article V(1) and s. 103(2) and (4) of the Arbitration Act 1996
- The agreement was not valid under the applicable law or the law of the seat of arbitration (Article V(1) and s. 103(2) of the Arbitration Act 1996)
- The arbitral authority did not follow the procedures agreed by the parties or if there was no such an agreement of the seat of the arbitration (Article V(1) and s. 103(2) of the Arbitration Act 1996)
- The respondent was not served with a proper notice regarding the appointment of the arbitrator or the proceedings (Article V(1) and s. 103(2) of the Arbitration Act 1996
What is mediation
‘flexible process conducted confidentially in which a neutral person actively assists the parties in working towards a negotiated agreement of a dispute resolution or difference, with the parties in ultimate control of the decision to settle the terms of the resolution’ (CEDR- Centre for Effective Dispute Resolution).
Give 3 mediation styles
Facilitative process-mediator attempts to understand the wish of the parties and its rationale
- Evaluative- strengths and weaknesses of the case are considered. Usually starts with mediator’s analysis of the merits of the case
- Transformative- focus is transforming the interpersonal relationship of the parties. Discussion starts with parties’ feeling and then it proceeds to interests
Advantages of mediation
- Mediation is less costly than litigation. However, mediation may or may not be less costly than negotiation between disputing parties through their lawyers
- Mediation may not result in a settlement and at time this may be the best outcome
- In litigation and arbitration and outcome must be achieved and this is the resolution of the dispute. With mediation (except with evaluative mediation) the approach regarding the outcome may vary
- Mediation aims to reduce the risk of escalating a conflict
- Mediation aims to preserve the long -term relationship if the disputing parties. This may also be the aim of arbitration although it is more adversarial in nature
- Mediation can ‘go deeper’ into the interpersonal aspects of the dispute
Disadvantages of mediation
- No precedents
- More powerful parties may potentially achieve a better outcome for themselves
- No publicity of the process
- Disputing parties do not feel that they have the opportunity to be heard by a disinterested party who will evaluate and validate their claim
Impact of the Woolf reforms and CPC?
Final Report set the founding stone for more amicable and effective avenues of dispute resolution through Alternative Dispute Resolution (ADR). Litigation continues to play a significant role as a dispute resolution mechanism but the most appropriate mechanism for dispute resolution can be partly determined by the nature of the dispute.
