SA5 ADR: Non-Adjudicative Options Flashcards
(36 cards)
What does BATNA/WATNA stand for?
‘best alternative to a negotiated agreement’
‘worst alternative to a negotiated agreement’
If parties decide to adopt a conciliator’s suggestions, what will they do?
Sign an agreement that will bind them as a contract to comply with the agreed terms.
Are conciliation discussions subject to the without prejudice principle?
Yes.
What is the difference between conciliation and mediation?
Conciliator can help the parties map out their dispute and allow them to see areas of common ground. Might suggest some basic terms for resolution, which the parties can refine between themselves with a conciliator’s guidance.
Mediation is more structured, with recognisable stages/phases.
When is usually the best time for mediation?
After disclosure (if it can’t be done pre-action).
What is a mediation agreement?
A legally enforceable promise that if a dispute arises, parties will attempt to resolve through mediation rather than court proceedings.
Often contained in a contract that governs the parties relationship e.g. a contract of the sale of goods.
What are the four stages to standard mediation?
- A joint opening phase.
- An information gathering/exploration stage.
- Bargaining stage.
- Final settlement stage.
Need not be taken in rigid, strict order.
What is the bottom line in mediation? Who knows who’s?
The mediator will know and keep secret both parties bottom line (which can be altered during mediation).
Who pays the costs for neutral evaluator?
Usually shared between parties (where evaluator is instructed by both).
Once appointed, what may the evaluator wish to establish in a preliminary meeting with the parties?
The ground rules, the docs to be provided, whether a hearing is required and set time limits for each stage.
What does the procedure relating to ENE usually provide for?
Each party to make written submissions and give evidence.
Possible to agree that each party should present some/all of their case in an oral hearing.
What should the evaluator’s recommendation contain?
May/may not contain detailed reasons.
It depends on the agreement reached between the parties and the evaluator.
Can the court order ENE if one party doesn’t consent to it?
Yes. An ENE hearing doesn’t obstruct the parties’ access to the court. It is simply part of the court process.
What is a grievance in the context of conciliation?
A complaint that arises in the context of a continuing relationship (particularly between employees and employers).
What might be an appropriate course of action for a debt claim to which there is no sustainable defence?
Issue proceedings and apply for summary judgment (won’t want to mediate).
What can be done by the court to make a reluctant party consider mediation?
- Court can offer strong judicial encouragement.
- Court can make an ADR order directing parties to consider ADR.
- Order parties to meet/have telephone contact with a mediator who will provide information about mediation/assess whether it would be an appropriate process to settle the dispute.
- Stay proceedings and direct attempted resolution by ADR.
- Make appropriate orders for advanced disclosure.
- Adverse costs orders.
Three roles taken on by mediator?
a) Organiser
b) Facilitator
c) Intermediatory
What information should a mediator provide to interested parties prior to mediation?
Details relating to their background and experience so the parties can make an informed choice.
Is a mediator permitted to act in circumstances where they might benefit financially from the outcome of the mediation, if there has been full disclosure and consent of the parties?
No.
What should the mediator ensure the parties understand about the mediation procedure?
The process, terms, fees payable and obligations of confidentiality.
If a party wishes to withdraw from mediation at any time, must it give reasons for doing so?
No.
What should the mediator ensure once an agreement is reached?
All parties understand the terms of the agreement and consent to it.
If requested by the parties and the mediator is competent to do so, he may give advice on how the agreement can be formalised and made enforceable.
Why have a confidentiality clause in a mediation agreement?
Adds weight to the without prejudice rule, may be wider than it.
If a mediation agreement does have a confidentiality clause, is the fact that the parties have agreed to try and resolve the dispute by mediation confidential?
No.
