Brainscape's Knowledge GenomeTM


Top Flashcards (Certified)
All Flashcards

FLK 1: Dispute Resolution > Topic 2 - Alternative Dispute Resolution > Flashcards

Topic 2 - Alternative Dispute Resolution Flashcards

(63 cards)

Start Studying
1
Q

What is the main purpose of ADR?

A

To identify the most effective dispute resolution procedure considering the nature of the dispute and the client’s commercial interests

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

What are the main forms of ADR?

A
  • Negotiation
  • Mediation
  • Arbitration
  • Med-arb
  • Early neutral evaluation / expert appraisal / expert evaluation
  • Expert determination
  • Conciliation
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

Define negotiation in the context of ADR

A

A communication process between parties intended to reach a compromise or agreement to the satisfaction of both parties

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

What is mediation?

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

True or False: In mediation, the mediator has the authority to make binding decisions.

A

False

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

What is arbitration?

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

What are the two key stages when the question of arbitration typically arises?

A
  • When negotiating a contract
  • When a dispute has arisen
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

What is med-arb?

A

A process where parties first attempt mediation, and if unsuccessful, proceed to arbitration for a binding determination

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

What is early neutral evaluation?

A

A process where an independent party provides a non-binding assessment of the matter referred to it

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

Differentiate between expert appraisal and expert determination.

A
  • Expert appraisal: provides a non-binding opinion
  • Expert determination: delivers a binding decision
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

What is conciliation?

A

A process involving an independent neutral third party to help parties resolve their dispute, which may involve facilitation or evaluation

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

List the advantages of using ADR

A
  • Court expectations
  • Better relationships
  • Less expensive
  • Saves time
  • Privacy / confidentiality
  • Less disruption
  • Range of outcomes
  • Outcomes reflect risk
  • Parties in control
  • Parties more involved
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

How does the court encourage the use of ADR?

A
  • Provides information about ADR
  • Can stay proceedings for parties to engage in ADR
  • Encourages consideration of ADR
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

What should a legal representative ensure regarding ADR options?

A
  • Ensure client is fully aware of ADR options
  • Help client pursue desired ADR
  • Act within the authority to settle granted by the client
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

When should a party engage in ADR according to contractual agreements?

A

If the contract specifies how and when ADR should be used

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

What are the factors suggesting earlier engagement in ADR is better?

A
  • Cost saving
  • Better relationships and information
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

What are the factors suggesting later engagement in ADR might be better?

A
  • Better understanding of each other’s case
  • Better understanding of available evidence
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

What does CPR require regarding ADR consideration?

A
  • Parties must consider ADR as per pre-action protocols
  • Include elements relating to negotiations in costs budgets
  • Confirm understanding of settlement options in Directions Questionnaires
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

What happens if a party refuses to engage in ADR?

A

The court may impose a costs penalty if the refusal is deemed unreasonable

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

Fill in the blank: Mediation allows parties to reach a solution ______.

A

[consensually]

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

What is a key advantage of mediation compared to litigation?

A

Greater opportunity for parties to get involved in the process

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

Which forms of ADR are suitable for maintaining relationships?

A
  • Mediation
  • Conciliation
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

True or False: Most concerns about the suitability of a case for ADR can be overcome.

A

True

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

What happens if a successful party in litigation refuses to engage in ADR?

A

The court may impose a costs penalty if the refusal is deemed unreasonable

The burden of proof lies with the unsuccessful party to justify the refusal.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
What factors does the court consider when assessing the reasonableness of refusing ADR?
* The nature of the dispute * The merits of the case * The extent of other settlement methods attempted * The costs of ADR * Potential prejudicial delays * The prospect of success in ADR
26
True or False: The court penalizes a party for not suggesting ADR.
False ## Footnote The court does not refuse costs simply for failing to suggest ADR.
27
What should a party do upon receiving an offer to engage in ADR?
* Consider the merits with legal advisors * Respond promptly in writing * Explain circumstances for refusing ADR * Make the letter 'open' or 'without prejudice save as to costs' * Note reasons for refusal separately
28
What can the court do at a Case Management Conference (CMC) to encourage ADR?
* Order a stay for ADR exploration * Direct parties to consider ADR and require explanations
29
Define mediation.
A confidential process that facilitates dispute resolution through an impartial third party, the mediator.
30
What are the advantages of mediation?
* Quick and cost-effective * Subject to 'without prejudice' privilege * Tailored settlement discussions * Focus on interests rather than legal rights * Helps maintain relationships * Clients can actively participate
31
What are some disadvantages of mediation?
* Perceived as a sign of weakness * Involves time and expense
32
What is a mediation clause?
A contractual clause requiring parties to engage in mediation for disputes arising from the contract.
33
What is the significance of the case Cable & Wireless PLC v IBM United Kingdom Ltd?
It established that a well-defined ADR procedure can be enforceable.
34
What types of claims are referred to the small claims mediation service?
Claims for less than £10,000 allocated to the small claims track, except for road traffic accident or personal injury claims.
35
What is the role of the mediator?
* Focus parties on the problem * Enable objective perspectives * Ensure consideration of alternatives to settlement * Maintain negotiation momentum * Facilitate communication
36
What must a mediator avoid during mediation?
* Conflicts of interest * Appearing to favor one side * Pressuring parties into mediation or settlement * Disclosing confidential information
37
What should parties consider when entering into a mediation agreement?
* Confidentiality of proceedings * Disclosure of information shared in private meetings * Details about documentation required
38
What is the purpose of a mediation bundle?
To provide both parties and the mediator with the same set of relevant documents.
39
What typically occurs during the joint session of mediation?
* Opening statements from both parties * Mediator's address on objectives and procedures * Clarification of issues
40
What are break-out sessions in mediation?
Individual meetings where each party is in separate rooms, and the mediator moves between them.
41
Fill in the blank: The mediator has no authority to make any _______ that is binding on the parties.
[decision]
42
How does mediation help maintain relationships?
By focusing on interests rather than legal rights, allowing for tailored discussions.
43
What are break-out sessions in mediation?
Individual meetings where parties are separated into different rooms, with the mediator moving between them.
44
What is the confidentiality agreement in break-out sessions?
It must be clear whether discussions can be shared by the mediator or must remain confidential unless permission is given.
45
Who should ideally play the lead role in mediation?
The business person or client, rather than the solicitor.
46
What is the role of legal representatives in mediation?
To protect the client's position and support the negotiated outcome.
47
What do BATNA and WATNA stand for?
* BATNA: best alternative to a negotiated agreement * WATNA: worst alternative to a negotiated agreement
48
How can a solicitor's attitude affect mediation?
An overly aggressive attitude may hinder the mediation process.
49
What is 'shuttle diplomacy' in mediation?
The mediator conveys settlement offers or information between the parties in separate rooms.
50
What is 'reality testing' in mediation?
The mediator challenges the parties' assumptions or refers to recent case law or precedent.
51
What is the mediator's role regarding settlement terms?
The mediator does not typically put forward settlement terms; they must come from the parties.
52
What is a settlement agreement?
A document recording the terms of the agreement reached during mediation.
53
When is a settlement agreement usually binding?
When it is reduced to writing and signed by both parties.
54
What can happen if mediation results in a partial settlement?
A settlement agreement should be drawn up for settled issues, and further mediation can be agreed for outstanding issues.
55
What is the role of the mediator after a settlement agreement is reached?
To assist in ensuring compliance with the settlement terms.
56
How can a settlement agreement be enforced if litigation is ongoing?
It can be incorporated into a 'consent' order and enforced as a court order.
57
What is Early Neutral Evaluation (ENE)?
A non-binding and confidential assessment of a dispute by an independent evaluator, often early in the case.
58
What is the typical use of ENE?
To provide a realistic appraisal of cases and assist in breaking deadlocked negotiations.
59
What is Conciliation?
A process involving an independent neutral third party to help parties resolve their dispute.
60
What is Expert Determination?
An adjudicative process where an independent expert makes a binding determination on a dispute.
61
What distinguishes Expert Determination from arbitration?
* The Arbitration Act 1996 does not apply * The court has no supervisory role.
62
What can happen if a party commences proceedings despite an expert determination agreement?
* The innocent party may be entitled to damages for breach of contract * The Court might stay the court proceedings.
63
What should parties consider regarding the process of ENE?
They may agree on various procedural matters, including what issues to consider and whether a hearing is necessary.

FLK 1: Dispute Resolution (15 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2025 Bold Learning Solutions. Terms and Conditions