DR: ADR

Question 1

What is the primary goal of negotiation in ADR?

Answer 1

To reach a compromise or agreement to the satisfaction of both parties.

Question 2

What is mediation?

Answer 2

A confidential process facilitated by an impartial third party to resolve disputes.

Question 3

In mediation, what is the role of the mediator?

Answer 3

To move between rooms delivering settlement offers and guiding parties to reflect on those offers.

Question 4

What happens if mediation does not result in an agreed resolution?

Answer 4

The content of the mediation remains confidential and will not be disclosed to the court.

Question 5

What is arbitration?

Answer 5

A process where a dispute is resolved by an impartial adjudicator whose decision is final and binding.

Question 6

When can parties choose to arbitrate a dispute?

Answer 6

At the contract negotiation stage or after a dispute has arisen.

Question 7

List some advantages of choosing to arbitrate.

Answer 7

• Privacy
• Easier enforcement in certain jurisdictions
• Ability to choose a specialist adjudicator
• Flexibility

Question 8

What is med-arb?

Answer 8

A process where parties first attempt mediation, and if unsuccessful, move to arbitration for a binding decision.

Question 9

What is early neutral evaluation?

Answer 9

A process where an independent party provides a non-binding assessment of the dispute.

Question 10

What differentiates expert determination from expert appraisal?

Answer 10

Expert determination provides a binding decision, while expert appraisal offers only an opinion.

Question 11

What is conciliation?

Answer 11

A process involving an independent neutral third party to help parties resolve their dispute, often with no clear definition.

Question 12

Identify the types of ADR processes without third-party intervention.

Answer 12

• Negotiation

Question 13

What are the ADR processes with third-party intervention that do not result in a binding determination?

Answer 13

• Mediation
• Early neutral evaluation
• Expert appraisal
• Conciliation

Question 14

What are the ADR processes with third-party intervention that do result in a binding determination?

Answer 14

• Expert determination
• Arbitration

Question 15

List potential advantages of using ADR.

Answer 15

• Court expectations
• Better relationships
• Less expensive
• Saves time
• Privacy / confidentiality
• Less disruption
• Range of outcomes
• Outcomes reflect risk
• Parties in control
• Greater involvement

Question 16

True or False: The court expects parties to explore ADR and can impose sanctions if they do not.

Answer 16

True.

Question 17

How does ADR help preserve relationships between parties?

Answer 17

It allows for consideration of business relationships, reputational issues, and personal emotions.

Question 18

What does greater privacy in ADR mean compared to litigation?

Answer 18

ADR processes are private and confidential, unlike court proceedings which are public.

Question 19

How does ADR lead to outcomes that reflect risks?

Answer 19

Parties can agree on settlements that reflect the likelihood of winning or losing, unlike in court.

Question 20

What is the role of lawyers in the ADR process?

Answer 20

• Ensure clients are aware of ADR options
• Help clients pursue ADR
• Act within the authority to settle granted by the client

Question 21

Which form of ADR would be recommended for a dispute that requires quick resolution and confidentiality?

Answer 21

Mediation.

Question 22

Fill in the blank: ADR processes with third-party intervention which do not result in a binding determination include _______.

Answer 22

[Mediation, Early neutral evaluation, Expert appraisal, Conciliation]

Question 23

True or False: Arbitration is likely to be a quick process.

Answer 23

False.

Question 24

What should parties consider when choosing an ADR process?

Answer 24

The individual circumstances of the case and the advantages of each ADR form.

Question 25

What is mediation?

Answer 25

A confidential process intended to facilitate the resolution of disputes through an impartial third party called the mediator.

Question 26

What is the role of the mediator?

Answer 26

To facilitate communication between parties, guide discussions, and help reach a settlement without having binding decision-making authority.

Question 27

What does 'without prejudice' privilege mean in mediation?

Answer 27

Substantive discussions in mediation cannot be referred to in litigation or arbitration proceedings.

Question 28

List some advantages of mediation.

Answer 28

* Quick and cheap process * Tailored settlement discussions * Focus on interests rather than legal rights * Opportunity for parties to maintain relationships * Greater involvement for clients

Question 29

True or False: Mediation always results in a binding resolution.

Answer 29

False

Question 30

What are some disadvantages of mediation?

Answer 30

* Perception of weakness in offering mediation * Involves time and expense

Question 31

What are mediation contract clauses?

Answer 31

Clauses in commercial contracts that require parties to engage in mediation for disputes arising out of the contract.

Question 32

What was the significance of the case Cable & Wireless PLC v IBM United Kingdom Ltd?

Answer 32

It established that ADR clauses can be enforceable if they identify a specific procedure from a recognized dispute resolution service.

Question 33

What is the small claims mediation service?

Answer 33

A free and confidential service for claims under £10,000, provided by HMCTS, requiring parties to agree to mediation.

Question 34

What are the mediator's key responsibilities?

Answer 34

* Avoid conflicts of interest * Maintain neutrality * Ensure confidentiality * Facilitate communication * Terminate mediation if it becomes illegal

Question 35

Fill in the blank: The mediator must ensure that parties understand the _______.

Answer 35

[mediation agreement and process]

Question 36

What are some organizations that help find mediators?

Answer 36

* CEDR – The Centre for Dispute Resolution * The International Chamber of Commerce * The Academy of Experts * ADR Net

Question 37

What should a mediation agreement address?

Answer 37

* Confidentiality * Disclosure of information * Documentation required in advance

Question 38

What is the purpose of a mediation bundle?

Answer 38

To provide both parties and the mediator with the same set of relevant documents for the mediation process.

Question 39

What is 'BATNA' and 'WATNA'?

Answer 39

* BATNA: Best Alternative to a Negotiated Agreement * WATNA: Worst Alternative to a Negotiated Agreement

Question 40

What is the typical structure of the mediation process?

Answer 40

* Joint session * Break-out sessions * Further negotiations * Outcome discussions

Question 41

What happens during the joint session of mediation?

Answer 41

Each party makes an opening statement, and the mediator addresses objectives, neutrality, procedural rules, confidentiality, and status of agreements.

Question 42

What is shuttle diplomacy in mediation?

Answer 42

The mediator conveys settlement offers and information between parties in separate rooms.

Question 43

List possible outcomes of mediation.

Answer 43

* Settlement of all issues * Settlement of some issues * Termination of mediation * Mediator termination

Question 44

What is the primary purpose of mediation?

Answer 44

To facilitate the resolution of disputes through an impartial third party, the mediator. ## Footnote Mediation is designed to be a confidential process that helps parties resolve their conflicts amicably.

Question 45

How can mediation end?

Answer 45

Mediation can end in several ways: * Settlement of all issues * Settlement of some issues with provisions for remaining issues * Termination by one or more parties * Termination by the mediator ## Footnote These outcomes can vary based on the dynamics of the mediation process.

Question 46

What should happen if all matters are resolved in mediation?

Answer 46

A settlement agreement will be drawn up recording the terms of the agreement. ## Footnote It is typically the solicitors in attendance who complete this task.

Question 47

What is a prudent provision to include in a mediation settlement agreement?

Answer 47

The settlement agreement should state that it is not binding until reduced to writing and signed by both parties. ## Footnote This helps avoid disputes about whether a contract was agreed upon orally.

Question 48

What should be done if a settlement agreement only partially resolves the issues?

Answer 48

A settlement agreement should be drawn up for settled issues, and the parties can agree to resume mediation or explore alternative forms of ADR. ## Footnote They may also decide to resolve the remaining issues in court.

Question 49

What should parties do if mediation did not result in a full settlement agreement?

Answer 49

Explore whether any 'momentum' can be capitalized on and formulate settlement proposals based on mutually acceptable terms. ## Footnote It is common for disputes to settle shortly after mediation.

Question 50

What role might the mediator have after a settlement agreement is reached?

Answer 50

The mediator may assist if issues arise during the execution of settlement obligations. ## Footnote This should be specified in the settlement documentation.

Question 51

How is the enforcement of a settlement agreement determined?

Answer 51

It depends on whether it arose in the context of ongoing litigation. ## Footnote If a case is pending, the settlement can be incorporated into a 'consent' order; otherwise, it is enforced as a contract.

Question 52

What are the key features of the mediation process?

Answer 52

The key features include: * Preparing for mediation * Attending the mediation * Formally recording any settlement ## Footnote Preparation involves choosing a mediator and analyzing party positions.

Question 53

What is the mediator's role in the mediation process?

Answer 53

To help parties see each other's positions objectively, consider alternatives to settlement, convey offers, and maintain positivity in the mediation. ## Footnote The mediator acts as a facilitator throughout the process.

Question 54

Fill in the blank: Mediation is typically _____ and _____, usually lasting one day.

Answer 54

quick and cheap ## Footnote This efficiency is one of the advantages of mediation compared to traditional litigation.