SGS 11: ADR / Arbitration

Question 1

What are the 5 forms of Alternative Dispute Resolution (ADR)?

Answer 1

1. Expert determination
2. Expert appraisal
3. Early neutral evaluation
4. Mediation
5. Med-Arb

Question 2

What is expert determination?

Answer 2

• Independent expert
• Appointed to provide a binding determination (though no authority to make a costs order).
• Suitable for disputes requiring technical knowledge, but not where there are issues of fact or credibility.

Question 3

What is expert appraisal?

Answer 3

• Independent expert is appointed to provide a non-binding assessment of the matter referred to it.
• Parties must pay for time & costs.

Question 4

What is early neutral evaluation?

Answer 4

• An independent, neutral evaluator gives a non-binding and confidential assessment of the dispute.
• No procedural requirements.
• Gives a realistic appraisal of each party’s case

Question 5

What is mediation?

Answer 5

• Confidential process to facilitate resolution of disputes through medium of an impartial 3P.
• No authority to make binding decision.
• Most popular & frequently used.

Question 6

What is Med-arb?

Answer 6

• Initially decide to resolve dispute by mediation, but failing that, will use arbitration

Question 7

When should ADR be considered in any proceedings?

Answer 7

• Early stages
• Should be continuous throughout
• May be more appropriate after disclosure when the parties know each others cases better
• Arbitration = instead of litigation

Question 8

Why would ADR be used?

Answer 8

• Overriding objective
• Avoid sanctions - e.g. cost sanctions in CPR 44.2
• Where proceedings are “stayed” fro specific purpose of attempting to settle using ADR.

Question 9

For MEDIATION, who is the third party involved?

Answer 9

• Mediator

Question 10

For MEDIATION, what is the amicable solution?

Answer 10

• Yes - there is an amicable solution

- Aims to preserve the commercial relationship

Question 11

For MEDIATION is there a binding decision?

Answer 11

• No

- Because mediation facilitates settlement only

Question 12

For MEDIATION what is the documentary evidence required?

Answer 12

• Not much

- Need a prepared bundle only

Question 13

FOR MEDIATION, are there procedural rules that need to be adhered to?

Answer 13

• No

Question 14

For MEDIATION, is there a legally correct solution

Answer 14

• Unclear - may be the most commercial solution instead?

Question 15

For MEDIATION, can the COURTS enforce the results?

Answer 15

• As long as any settlement is recorded in Tomlin order

- Or formal contract

Question 16

For MEDIATION, is there precedent value?

Answer 16

• No

Question 17

For MEDIATION, is there billing costs order?

Answer 17

• No
• Costs likely incorporate into any settlement sum
• As agreed by the parties

Question 18

For MEDIATION, are the proceedings held in private?

Answer 18

• Yes
• Confidentiality signed
• Held on “without prejudice” basis

Question 19

For ARBITRATION , who is the third party involved?

Answer 19

• The arbitrator

Question 20

For ARBITRATION , is this an amicable solution?

Answer 20

• No

- Just as contentious and adversarial as litigation is

Question 21

For ARBITRATION is there a binding decision?

Answer 21

• Yes

- Under S58 Arbitration Act 1996

Question 22

For ARBITRATION what is the documentary evidence required?

Answer 22

• Likely, but it depends on what the parties have agreed

Question 23

FOR ARBITRATION , are there procedural rules that need to be adhered to?

Answer 23

• Yes there are

- The mandatory rules in Arbitration Act 1996 Schedule 1

Question 24

For ARBITRATION , is there a legally correct solution

Answer 24

• Is likely that there is
• But depends on what the parties agree
• Arbitration act s45 / 46/ 52 / 69

Question 25

For ARBITRATION , can the COURTS enforce the results?

Answer 25

• Yes they can

- S66 Arbitration Act 1996

Question 26

For ARBITRATION , is there precedent value?

Answer 26

• No
• Parties are contractually bound
• But they are not binding on the 3rd party

Question 27

For ARBITRATION , is there billing costs order?

Answer 27

• This will depend on what the parties actually agree
• Arbitration Act s59-65
• Especially section 63

Question 28

For ARBITRATION , are the proceedings held in private?

Answer 28

• AA 1996 is silent on this

- Confidentiality agreements are usually signed

Question 29

For LITIGATION , who is the third party involved?

Answer 29

• The judge

Question 30

For LITIGATION , is this an amicable solution?

Answer 30

• No
• Court promotes that ADR.
• But these proceedings ARE adversarial.

Question 31

For LITIGATION is there a binding decision?

Answer 31

• Yes

- Under CPR 40.7

Question 32

For LITIGATION what is the documentary evidence required?

Answer 32

• Yes

- Under CPR 31, 31, 35

Question 33

FOR LITIGATION , are there procedural rules that need to be adhered to?

Answer 33

• Yes there are

- Under the CPR

Question 34

For LITIGATION , is there a legally correct solution

Answer 34

• Yes

Question 35

For LITIGATION , can the COURTS enforce the results?

Answer 35

• Yes

- CPR 70-73

Question 36

For LITIGATION , is there precedent value?

Answer 36

• Yes

- Under the usual rules of precedent

Question 37

For LITIGATION , is there billing costs order?

Answer 37

• Yes there is

- CPR 44

Question 38

For LITIGATION , are the proceedings held in private?

Answer 38

• Not 100% either way
• Trial is most likely public
• But have to look at CPR 39.2