Methods of Dispute Resolution

Question 1

What should you always consider in the assessments if there is the possibility of ADR?

Answer 1

Negotiation. If a client has received a settlement offer, recommend a counter offer.

Question 2

When would the court allow a failure to engage in ADR?

Answer 2

• If it is inappropriate, e.g. need for an injunction;
• other party is unlikely to co-operate in the process; or
• other party cannot be trusted to comply

Question 3

If a party is not engaging in ADR, what should they do?

Answer 3

Must serve a witness statement giving reasons why not within 21 days of the proposal.

Not to be shown to the trial judge until the consideration of costs.

Question 4

What is mediation?

Answer 4

Parties agree on an independent third person who negotiates the case with the parties, aiming to identify the true issues of dispute and ultimately trying to cultivate a constructive solution.

Question 5

What are some of the advantages of mediation?

Answer 5

(i) It is cost and time-efficient, a skilled mediator can create a solution expeditiously for the parties;

(ii) It is a flexible process, parties can choose the procedure to be followed;

(iii) Private proceedings, can be important in terms of reputation;

(iv) Preserves business relationships as it is non-confrontational;

(v) Can result in awards that a court cannot order;

(vi) Parties can withdraw at any time

Question 6

What are the disadvantages of mediation?

Answer 6

(i) No formal disclosure proceedings, so a decision may not be accurate to the facts;

(ii) Not good if a person wants public vindication;

(iii) Ability to withdraw means that even if it is going well, a party can choose to leave;

(iv) No formal enforcement, unless parties enter into a contract

Question 7

What is arbitration?

Answer 7

An alternative procedure to litigation, where an independent expert arbitrator gives a binding decision regarding the dispute.

Question 8

What are the advantages of arbitration?

Answer 8

(a) Likely to be quicker than going to court;

(b) less formal procedure;

(c) can choose an expert arbitrator;

(d) private form of dispute resolution;

(e) more practical, tailored, solutions;

(f) binding on the parties

Question 9

What are the disadvantages with arbitration?

Answer 9

(a) no formal procedures, e.g. disclosure, that are required to facilitate in-depth investigation;

(b) some remedies, e.g. injunctions, are not available

Question 10

What happens if a party unreasonably refuses to engage to ADR?

Answer 10

There may be a costs sanction imposed by the courts.