What is the definition of ADR?

Covers any option where there's a dispute between 2 or more parties

Dispute relates to civil legal rights and/or duties

Dispute could potentially go to court for resolution

What are the key points about ADR procedures? (4 points)

May result in a binding decision being made by a third party (adjudicative) OR by the parties themselves by agreement (non-adjudicative)

May be a relatively informal procedure (arbitration) OR substantial flexibility (negotiation)

The process my be paper-based or involve meetings

Process may be evaluative (with non-binding proposals being made) or facilitative

What are the main attractions of arbitration?

Parties can select an arbitrator with appropriate expertise and experience

Process can be tailored to meet needs of dispute

Process can be relatively structured

Process can be relatively simple and cost effective (if based on written submissions, not a hearing)

Process can't be tailored to meet needs of dispute

Process is relatively complicated and costly

Process is relatively unstructured

What are the potential drawbacks of arbitration?

Not necessarily cost-saving option if process similar to trial is used

Parties leave final decision to a 3P and will be bound by it

An arbitration process can't deal easily with a party who fails to cooperate, as an arbitrator will not have the wide powers of a judge

Arbitrator needs to be selected with care (experience, expertise etc.)

What does an adjudication involve?

Neutral 3P with appropriate specialist knowledge acting under an agreed process and reaching a decision on a dispute/specified issues

Neutral 3P acting under an agreed process without having to reach a decision on a dispute/specified issues

Which of the following are criteria which may be relevant to selecting the most appropriate form of ADR?

How much control the party wants

Importance of future relationship

Whether view of expert is important to the key issues

Whether neutral assistance would be valuable

Importance of minimising antagonism between parties

How much money the parties have to spend

What factors may mean that ADR is not appropriate?

The importance of a court order

The relevance of interim orders

At what time can ADR be used?

At any stage from the time a cause of action arises to appeal

At any stage from the time a cause of action arises, but not to appeal

Quiz

RODOC quiz BPTC

Jennifer Moles 398 questions

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Questions in this quiz (398)

1What is the definition of ADR?
1. ACovers any option where there's a dispute between 2 or more parties
2. BDispute relates to civil legal rights and/or duties
3. CDispute could potentially go to court for resolution
2What are the key points about ADR procedures? (4 points)
1. AMay result in a binding decision being made by a third party (adjudicative) OR by the parties themselves by agreement (non-adjudicative)
2. BMay be a relatively informal procedure (arbitration) OR substantial flexibility (negotiation)
3. CThe process my be paper-based or involve meetings
4. DProcess may be evaluative (with non-binding proposals being made) or facilitative
3ADR is compulsory
1. ATrue
2. BFalse
4The court will consider communications made during an ADR process
1. ATrue
2. BFalse
5ADR options can only be used with agreement of the parties
1. ATrue
2. BFalse
6In adjudicative ADE an independent 3P reaches an impartial decision on a dispute
1. ATrue
2. BFalse
7Adjudicative ADR provides less flexibility and less privacy than litigation
1. ATrue
2. BFalse
8In an adjudicative process, the parties have control over the choice of process in that the adjudicative process will be set up by a contractual agreement between them
1. ATrue
2. BFalse
9The parties can't agree what material should be available should be available to the 3P
1. ATrue
2. BFalse
10An adjudicative process won't be subject to court oversight
1. ATrue
2. BFalse

11Adjudicative processes won't be conducted in private
1. ATrue
2. BFalse
12How many arbitrators may conduct an arbitration?
1. AOne
2. BOne or more
13The process to be followed won't be agreed in advance by the parties
1. ATrue
2. BFalse
14An arbitration may only involve a hearing (broadly similar to a trial)
1. ATrue
2. BFalse
15Arbitration is commonly used in commercial cases
1. ATrue
2. BFalse
16What are the main attractions of arbitration?
1. AParties can select an arbitrator with appropriate expertise and experience
2. BProcess is public
3. CProcess can be tailored to meet needs of dispute
4. DProcess is private
5. EProcess can be relatively structured
6. FProcess can't be tailored to meet needs of dispute
7. GProcess is relatively complicated and costly
8. HProcess can be relatively simple and cost effective (if based on written submissions, not a hearing)
9. IProcess is relatively unstructured
17What are the potential drawbacks of arbitration?
1. ANot necessarily cost-saving option if process similar to trial is used
2. BParties leave final decision to a 3P and will be bound by it
3. CAn arbitration process can't deal easily with a party who fails to cooperate, as an arbitrator will not have the wide powers of a judge
4. DArbitrator needs to be selected with care (experience, expertise etc.)
18What does an adjudication involve?
1. ANeutral 3P with appropriate specialist knowledge acting under an agreed process and reaching a decision on a dispute/specified issues
2. BNeutral 3P acting under an agreed process without having to reach a decision on a dispute/specified issues
19Arbitration is most likely to be appropriate in a specialist commercial field
1. ATrue
2. BFalse
20An adjudication process should not be agreed between parties in a binding form
1. ATrue
2. BFalse
21The arbitration process may not be laid down in advance in terms agreed by the industry and/or by the body or person who provides the adjudication
1. ATrue
2. BFalse
22By agreement, adjudication may lead to a binding decision, or to a decision that will only be binding if the parties agree to it, or if neither party appeals within a set period
1. ATrue
2. BFalse
23Offer and acceptance is the simplest form of non-adjudicative ADR
1. ATrue
2. BFalse
24In offer and acceptance, an offer can't be accepted orally
1. ATrue
2. BFalse
25Offer and acceptance is most suited to a case with complex issues
1. ATrue
2. BFalse
26An offer made in an attempt to settle will be protected by without prejudice privilege
1. ATrue
2. BFalse
27If the party may wish to be able to refer to the offer, it doesn't need to be expressly made as an open offer
1. ATrue
2. BFalse
28Negotiation is the least common form of ADR
1. ATrue
2. BFalse
29A mini trial may be arranged to determine what?
1. ASpecific issues
2. BCosts
30In a mini trial, each side makes summary submissions, and the senior officers seek to reach an agreement
1. ATrue
2. BFalse
31In a mini trial, if the senior officer seeks to reach an agreement but fails to do so, an independent adviser may not issue an opinion
1. ATrue
2. BFalse
32Conciliation normally involves a neutral 3P
1. ATrue
2. BFalse
33In conciliation, the conciliator might propose a decision if the parties can't reach one, and this may be binding
1. ATrue
2. BFalse
34Non-adjudicative ADR or expert determination can potentially take place very quickly, and soon after a dispute arises
1. ATrue
2. BFalse
35An ADR process isn't subject to contractual agreement between the parties
1. ATrue
2. BFalse
36If an adjudicative process is used, control of process will often pass to the individual reaching a decision once the parties have agreed process
1. ATrue
2. BFalse
37Use of ADR will usually keep down the costs of resolving a dispute, particularly if the case is settled at a relatively early stage and if adjudicative ADR is used
1. ATrue
2. BFalse
38Non-adjudicative ADR can potentially take place very quickly, and soon after dispute arises
1. ATrue
2. BFalse
39In non-adjudicative ADR, the parties can't agree the process to suit their needs
1. ATrue
2. BFalse
40Id adjudicative ADR is used, control of process will often pass to the individual reaching a decision once the parties have agreed the process
1. ATrue
2. BFalse
41In adjudicative ADR a more flexible process can be agreed, and in non-adjudicative ADR the process is normally very flexible
1. ATrue
2. BFalse
42Confidentiality is protected more through litigation than through ADR
1. ATrue
2. BFalse
43In non-adjudicative ADR, parties can't agree any terms they wish
1. ATrue
2. BFalse
44An ADR process may be more effective than litigation in preserving a relationship and reaching a settlement that best reflects future interests
1. ATrue
2. BFalse
45ADR can be less constructive than litigation
1. ATrue
2. BFalse
46Risk may be more directly controlled through constructive and proactive use of ADR
1. ATrue
2. BFalse
47Which of the following are criteria which may be relevant to selecting the most appropriate form of ADR?
1. AImportance of minimising costs
2. BImportance of minimising antagonism between parties
3. CImportance of fast resolution
4. DHow much control the party wants
5. EMain objectives of the party
6. FHow much money the parties have to spend
7. GImportance of future relationship
8. HViews of non-parties
9. IWhether view of expert is important to the key issues
10. JWhether neutral assistance would be valuable
48If the main objective of the party is to decide on an appropriate sum of compensation, any ADR process may be apropriate
1. ATrue
2. BFalse
49Mediation with an effective mediator won't prove effective in helping a party to see the strengths and weaknesses of a case more objectively
1. ATrue
2. BFalse
50What factors may mean that ADR is not appropriate?
1. AThe need for a precedent
2. BThe importance of a court order
3. CThe relevance of interim orders
4. DStrength of a case
5. EComplexity of the case
6. FHigh levels of animosity
7. GPower imbalance
8. HQuasi-criminal allegations
9. IHaving a day in court
10. JEnforcement may be an issue
51At what time can ADR be used?
1. AAt any stage from the time a cause of action arises, but not to appeal
2. BAt any stage from the time a cause of action arises to appeal
52What does dealing with a case 'justly' include?
1. ADealing with cases as cost-effectively as possible
2. BDealing summarily with issues that don't need to be fully investigated and to go to trial
3. CDealing summarily with issues that do need to be fully investigated
4. DEnsuring case is dealt with expeditiously
53Waiting until after exchange of particulars of claim and documents before attempting ADR can mean that attitudes of parties have hardened and what?
1. ACosts have grown (level of which may threaten successful ADR)
2. BParties may abandon claim altogether
54Decisions about ADR may need review as relevant factors will change over time
1. ATrue
2. BFalse
55Records of attempts to use ADR shouldn't be kept
1. ATrue
2. BFalse
56Communications made with a view to settlement are privileged
1. ATrue
2. BFalse
57If a clause is sufficiently clear and is contractually binding, is a court likely to enforce the clause if necessary?
1. AYes
2. BNo
58In which situations have clauses providing for pre-selection of ADR proved effective?
1. AAdjudicative processes
2. BGeneral expression of intention to use ADR
3. CMediation
4. DGeneral expression of intention to take an effective part in a non-adjudicative ADR process
5. EExpert determination
59If there's no pre-agreement, which of the following is NOT an advantage of actively considering ADR at an early stage?
1. AThis provides best opportunity to save time and costs
2. BSome non-adjudicative ADR (e.g. ENE) is by its nature most effective if it's incorporated into a case reasonably quickly
3. CActing in the best interests of the client
4. DCan clarify issues even if you don't reach settlement
5. EA constructive approach may help to ensure that the views of parties don't become entrenched
60Each party consider and make/respond to a proposal for the use of appropriate ADR at the pre-issue stage, or record reasons why ADR was not appropriate?
1. ATrue
2. BFalse
61Will a party who considers it inappropriate to try to settle a claim at the directions questionnaire stage by asked to give reasons as to why it is considered so?
1. AYes
2. BNo
62On allocation to the multi-track, the court won't give case management directions, based on relevant model and standard directions which may include direction in relation to the use of ADR
1. ATrue
2. BFalse
63Can the court order that a party/their representative attend court?
1. AYes
2. BNo
64On an application for an interim order the court may give directions to support the use of ADR
1. ATrue
2. BFalse
65Can the court order trial of a preliminary issue if the rest of a case might then settle?
1. ANo
2. BYes
66When is it reasonable to refuse to agree to use ADR?
1. AUntil after a key court decision
2. BUntil all stages of litigation up to and including exchange of witness statements are completed
3. CBefore issues are clarified in the statements of case
4. DBefore witness statements are available
67Settlement at the door of the court isn't common
1. ATrue
2. BFalse
68It's reasonable to refuse to mediate because costs already exceed the amount in issue
1. ATrue
2. BFalse
69There is no presumption that litigation should continue unless ADR is shown to be preferable
1. ATrue
2. BFalse
70The decision whether ADR is appropriate at a particular time is an objective and strategic one as regards how the case should most appropriately be pursued
1. ATrue
2. BFalse
71Once statements of case are in place, will the issues be sufficiently clear for ADR to be used?
1. AYes
2. BNo
72What information needs to be made available for the case to be sufficiently evaluated before a dispute can be properly resolved?
1. AStrength of case
2. BRemedies
3. CParties' intentions
73Is it essential to prove a case in non-adjudicative ADR?
1. AYes
2. BNo
74It is essential for a lawyer to wait until full disclosure is complete to evaluate a case
1. ATrue
2. BFalse
75In adjudicative ADR, appropriate evidence may need to be made available to the decision-taker
1. ATrue
2. BFalse
76ADR may not be undertaken once an interim order has been sought
1. ATrue
2. BFalse
77In adjudicative ADR an arbitrator may have interim powers, but interim orders could not be made by a mediator
1. ATrue
2. BFalse
78The court will not necessarily see the strength of a case as justifying a refusal to use ADR
1. ATrue
2. BFalse
79Antagonism between parties definitely rules out ADR if other factors indicate it might be appropriate
1. ATrue
2. BFalse
80The lawyer must ensure that the client is sufficiently are of ADR alternatives to litigation
1. ATrue
2. BFalse
81The lawyer doesn't need to provide objective information on relevant ADR options
1. ATrue
2. BFalse
82The lawyer needs to advise the client on pre-action obligations, as well as obligations under the overriding objective in relation to ADR
1. ATrue
2. BFalse
83The client doesn't need to be made aware of funding, costs or penalties
1. ATrue
2. BFalse
84The lawyer must advise the client on the strengths and weaknesses of a case
1. ATrue
2. BFalse
85The lawyer must advise on and draft terms of settlement
1. ATrue
2. BFalse
86Which of the following is NOT within the role of the lawyer in non-adjudicative ADR processes?
1. ACase analysis
2. BIdentifying and formulating offers
3. CEvaluating proposals from other side
4. DGiving own opinion on the case
5. EEnsuring terms are clear and comprehensive
6. FNegotiating with the other side
87In ADR generally, any agreement reached should be within the parameters set by who?
1. ANeutral 3P
2. BLawyers
3. CClient
88A lawyer negotiating on a client's behalf should only reach a final agreement if so authorised by the client
1. ATrue
2. BFalse
89In negotiating as an agent, will a lawyer normally have apparent authority to settle on behalf of the client?
1. AYes
2. BNo
90Can a limit on authority to settle be exceeded?
1. AYes
2. BNo
91What are the main elements of the role of a lawyer in advising on terms of settlement?
1. AWhat terms might be acceptable on each issue
2. BPrecise wording of terms
3. CGiving their opinion on the case
4. DReasonableness and comprehensiveness of the overall settlement
5. EAdvising on the most sensible settlement
6. FDetails of terms
7. GAny matters relating to enforcement
8. HIn what form settlement is best recorded
92An ADR process isn't based on a contractual agreement between the parties
1. ATrue
2. BFalse
93ADR processes are less structured than litigation and are therefore not robust
1. ATrue
2. BFalse
94Control of an ADR process lies primarily with the parties
1. ATrue
2. BFalse
95ADR may not be used as a delaying tactic
1. ATrue
2. BFalse
96If a court has positively supported the use of ADR, a refusal to use it will more readily be seen as being unreasonable
1. ATrue
2. BFalse
97Which of the following will a lawyer NOT be liable for?
1. AFailing to provide suggestions for settlement
2. BFailing to give a client sufficient advice on ADR options in a case where the use of ADR would be in the client's interests
3. CFailing to give advice on merits of the case
4. DFailing to get sufficiently clear instructions
5. EFailing to advise a client about the risks of unreasonably refusing to use ADR
6. FFailing to enable a client to reach a settlement
7. GGiving clearly inadequate advice on the appropriateness of proposed settlement terms or enforcement issues
98If a party voluntarily agrees to use an ADR process, and/or voluntarily agrees the outcome of a non-adjudicative process on the basis of adequate advice, it won't be difficult for that client to raise any complaint, or to show causation of any loss
1. ATrue
2. BFalse
99Any 3P involved in an ADR process might separately be liable for breach of contract or negligence
1. ATrue
2. BFalse
100In which of the following situations may a lawyer be liable for negligence in relation to ADR?
1. AAdvises client to accept too low a sum
2. BFails to investigate facts properly, so client recovers less than should have been recovered
3. CFails to pass important information to a client
4. DFails to make client aware of implications of unusual terms in an agreement
5. EUndertakes responsibilities in relation to an agreement, but is responsible for a breach of what was undertaken
101ADR processes are normally what?
1. APublic
2. BPrivate
102ADR processes are normally protected from publicity by confidentiality clauses
1. ATrue
2. BFalse
103The 'without prejudice' principle means what?
1. ACommunication made in a genuine attempt to settle can normally be referred to in court proceedings
2. BCommunication made in a genuine attempt to settle can't normally be referred to in court proceedings
104Additional X for communications between a lawyer and client is provided by the principle of legal professional privilege.
What is X?
1. AComplication
2. BSecrecy
3. CProtection
105In ADR, there is a general right to privacy
1. ATrue
2. BFalse
106Which of the following are difficulties arising from the confidentiality of ADR processes?
1. AThere may be a dispute about the precise terms of a settlement which can't easily be resolved without reference to the ADR process
2. BSettlement might be challenged on the basis it was reached improperly
3. CIf ADR process isn't successful, a party may wish to use a communication made during the process as evidence relevant to an issue in the course of litigation
107Is there a general duty of disclosure in ADR?
1. AYes
2. BNo
108Which of the following is NOT a means by which information is shared in ADR?
1. ABy agreement
2. BOn a voluntary basis
3. CBy court ruling
4. DAs a reaction to developments in the process
109In mediation, the position will be governed by the mediation agreement, and any published rules of the mediation provider selected.
1. ATrue
2. BFalse
110For arbitration and other adjudicative processes, the parties will normally agree on the extent of mutual disclosure
1. ATrue
2. BFalse
111For other types of evaluation or determination, parties won't agree what material is given to the 3P
1. ATrue
2. BFalse
112Legal professional privilege is the privilege of X and can be waived by X.
What is 'X'?
1. AThe client
2. BThe lawyer
3. CThe 3P
113Information can be made privileged simply by being raised with a lawyer if it's otherwise disclosable.
1. ATrue
2. BFalse
114Where information/advice sought from a 3P (such as an expert), may privilege be claimed for a communication between a client or lawyer and a 3P?
1. ANo
2. BYes
115Legal professional privilege will apply to a meeting between lawyers and clients on opposing sides of a case
1. ATrue
2. BFalse
116The intention of the 'without prejudice' principle is to protect from disclosure any communication made between parties with a view to settling a case
1. ATrue
2. BFalse
117Will any oral or written communication passing between parties made in a genuine attempt to settle a dispute be protected from disclosure in the current and any subsequent proceedings between the same parties and subject matter?
1. AYes
2. BNo
118The WP principle is that if no agreement is reached a communication made in an attempt to settle cannot be used in court, either in X or in Y by lawyers.
What are 'X' and 'Y'?
1. AEvidence and reference
2. BContention and discussion
3. CCross-examination and negotiation
119The privilege is essentially joint and shouldn't normally be waived by one party alone
1. ATrue
2. BFalse
120If the parties agree to waive privilege so that information can be put before a court, the protection can be claimed by a 3P such as a mediator or evaluator
1. ATrue
2. BFalse
121It's possible to exclude protection for specific purposes
1. ATrue
2. BFalse
122In order to be able to refer to a without prejudice letter when costs come to be considered, the letter must expressly be made without prejudice save as to costs
1. ATrue
2. BFalse
123In family cases, the Cafcass officer and any mediator won't be protected from disclosure in any subsequent hearing before another judge
1. ATrue
2. BFalse
124Without prejudice provides protection from disclosure where a communication is made with a view to settlement
1. ATrue
2. BFalse
125In cases where there is an allegation of some improper conduct during a settlement process, will the court normally uphold the principle that communication within a settlement process shouldn't be disclosed?
1. AYes
2. BNo
126Confidentiality is the norm within ADR
1. ATrue
2. BFalse
127Will an agreement to use arbitration or mediation normally include a confidentiality clause?
1. AYes
2. BNo
128A confidentiality clause won't commonly bind the parties to a dispute, and any 3P facilitator or decision-taker
1. ATrue
2. BFalse
129A confidentiality clause must be express
1. ATrue
2. BFalse
130There is no principle that will necessarily protect privacy if someone else at the ADR process were to make something public
1. ATrue
2. BFalse
131In negotiation, information disclosed during a negotiation between lawyers may be protected by professional conduct responsibilities
1. ATrue
2. BFalse
132If other people take part in a negotiation, information will always be protected unless those involved are bound by contractual confidentiality
1. ATrue
2. BFalse
133In mediation, a confidentiality term in an agreement will normally protect any communication between the parties, and between each party and the mediator from being revealed.
1. ATrue
2. BFalse
134In negotiation, where a communication takes place between a party and the mediator in a private meeting, that communication should only be revealed to the other side with the agreement of the party making the communication should only be revealed to the other side with the agreement of who?
1. AAll parties
2. BThe party making the communication
3. CThe negotiator
135Experts, ENE and ED: Information may not be provided to a 3P in various circumstances in relation to an ADR process
1. ATrue
2. BFalse
136Experts, ENE and expert determination: The confidentiality of the information provided to a 3P in these ADR processes is best protected through what?
1. AA verbal agreement
2. BAn agreement with all parties
3. CA term in the agreement with that individual
137Experts, ENE and expert determination: One party may provide information that the party wishes to be kept confidential in relation to another party
1. ATrue
2. BFalse
138Arbitral proceedings are private and confidential
1. ATrue
2. BFalse
139Adjudicative processes such as arbitration are normally based on what?
1. AVerbal agreement
2. BWritten agreement
140Deployment by a party of its own documents in an arbitration clothes those documents with any confidentiality that they didn't already possess
1. ATrue
2. BFalse
141In an adjudicative process it's not normally possible for one party to provide confidential information to the tribunal which isn't disclosed to the other side
1. ATrue
2. BFalse
142Which of the following are the principal cases where disclosure may be permitted?
1. AWhere there's consent
2. BWhere the interests of justice require it
3. CWhere a court grants permission
4. DWhere the parties agree to it
5. EWhere disclosure is reasonably necessary for the protection of the legitimate interests of an arbitrating party
143Duties in relation to explaining the potential expense of a dispute resolution process to a client applies throughout a case, so adequate advice on the comparative expense of different relevant processes should potentially be provided more than once
1. ATrue
2. BFalse
144How is an ADR process normally paid for?
1. AEqually the parties
2. BBy the party brining the claim
3. CBy the party defending the claim
145Do the use of DBAs and fixed fees provide incentives for early settlement?
1. AYes
2. BNo
146Which one of the below is NOT a reason why an ADR may be cost effective?
1. AADR processes can often be completed for a fixed fee
2. BParties can avoid/control the expense of processes such as disclosure
3. CParties can (to a certain extent) control related expenses through the agreement they make as to the ADR process to be used
4. DParties can choose the cheapest ADR option possible
147What are the main elements of expense for an ADR process?
1. AFee for ADR process
2. BFee for opting for ADR rather than litigation
3. CSum due for location of place where process is held (if any)
4. DParties' travel expenses
5. EBrief fee, if counsel instructed in connection with ADR process
6. FLawyers' fee to cover preparatory work and advice
7. GExpenses of parties and lawyers attending ADR process
8. HExpenses of anyone else asked to attend ADR process
148Negotiation will be most cost-effective if carried out through the use of written offers/in a telephone conversation
1. ATrue
2. BFalse
149Parties won't be liable for their own expenses for a negotiation
1. ATrue
2. BFalse
150If the negotiation doesn't result in settlement, expenses related to negotiation may form part of the costs of the proceedings
1. ATrue
2. BFalse
151In a challenging case, a more experienced and specialist mediator might be more likely to what?
1. AAchieve success but increase costs
2. BAchieve success and ultimately save costs
152Within mediation, does what is included in the final fee need to be clarified before finalising an agreement to mediate?
1. AYes
2. BNo
3. C...and whether the fee is for the process or is charged to the other party.
  The fee may cover only the cost of the time of the mediator, or a package may include a location for the mediation and other support services.
153Liability for the fee of the mediator or the mediation service provider will not normally be covered by the written mediation agreement
1. ATrue
2. BFalse
154The mediation fee will normally be shared equally
1. ATrue
2. BFalse
155Arbitration is general less expensive than other forms of ADR
1. ATrue
2. BFalse
156Payment of the arbitration fee will normally be covered by the arbitration agreement, which commonly provides for the fee to be shared equally by the parties
1. ATrue
2. BFalse
157Which one of the following is NOT one of the main expenses involved in an arbitration?
1. AFee for arbitration itself
2. BFees of the lawyers (if there's a hearing)
3. CFee charged by neutral 3P
4. DExpenses of parties (if there's a hearing)
5. EFee for application for an arbitration
158Any funding agreement should envisage the possibility of what?
1. ANeed for expert evidence
2. BSettlement
3. CNeed for a hearing
159Cost of an ENE, expert determination or adjudication will depend on whether the process agreed is paper-based or includes oral evidence and representations
1. ATrue
2. BFalse
160ENE, expert determination and adjudication: A fee isn't likely to be charged for finding a suitable 3P
1. ATrue
2. BFalse
161After the event (ATE) insurance is necessary if a case is settled before issue
1. ATrue
2. BFalse
162It's increasingly common for high value cases to be funded by 3Ps, who will bear the expense of dispute resolution in return for a share of what?
1. ADamages recovered
2. BProfit gained
3. CCosts incurred
163In conditional fee arrangements (CFA) will the client pay legal fees if the claim is lost?
1. ANo
2. BYes
164CFAs: Settlement of the case will normally mean that the fee and success fee are payable to the lawyer, depending on the outcome reached
1. ATrue
2. BFalse
165A party using a CFA may take out ATE insurance to cover the potential liability to pay the costs of the other side if the case is won
1. ATrue
2. BFalse
166QOCS will protect the party against what?
1. ALiability for their own costs
2. BLiability of costs for the other side
3. CLiability of expenses incurred for the ADR process used
167Damages-Based Agreements (DBA) provide that a range of specified information must be given before a DBA is entered into
1. ATrue
2. BFalse
168A party with Legal Aid Agency (LAA) funding is in a relatively strong position in that the other side will face paying what even if they win?
1. AThe costs of the other side
2. BTheir own costs even if they win
169Which of the following statements about LAA is NOT true?
1. AA party in receipt of public funding can be required by the LAA to attempt mediation before litigation, unless the dispute isn't suitable
2. BFunding will always cover a trial
3. CLAA funding may cover the reasonable costs of negotiation or mediation if that is the most cost effective way of proceeding (but this should be checked in each case)
4. DFunding may not cover a trial unless reasonable attempts to settle have been made
5. EThe costs of processes such as ENE or expert determination may be covered as a disbursement
6. FThe LAA must be told of a Part 36 offer, as the impact on success is relevant to funding. If an assisted party fails to beat a Part 36 offer they will have to pay the defendant's costs, and a case may need to be compromised to avoid such an effect
7. GA lawyer has an obligation to report a refusal of any reasonable offer to settle, and funding may be withdrawn
170Costs management applies to many MT cases commenced after 1 April 2013
1. ATrue
2. BFalse
171The parties must exchange costs budgets in a set form with a statement of truth within 14 days after the service of the defence, with a simplified format where the costs do not exceed £25,000
1. ATrue
2. BFalse
172Cases commenced after 1 April 2013 must be reasonably X and reasonable in Y, and Z to the sums in issue, the value of any non-monetary relief in issue, the complexity of the litigation, work generated by the paying party and wider matters such as public importance to be recoverable.
What do 'X', 'Y' and 'Z' stand for?
1. APursued, amount and proportionate
2. Bincurred, amount and proportionate
3. CIncurred, size and proportionate
4. DIncurred, amount and fair
173An ADR process is likely to need to take into account what?
1. AChances of success
2. BRisk of losing
3. CDamages realistically claimed in the case
4. DExtent to which expense has already been incurred
5. EPossibility that liability for costs may shift
6. FComparative cost of litigation and of an appropriate ADR process
7. GExtent to which it may be possible to manage risk, for example through a Part 36 offer
174Failure to comply sufficiently with relevant requirements of the Practice Direction Pre-Action and any relevant Pre-Action Protocols would not become an issue in litigation
1. ATrue
2. BFalse
175An existing contractual agreement may not provide for the immediate use of ADR, specifying a particular ADR process to be used, or steps that need to be undertaken before litigation can be commenced.
1. ATrue
2. BFalse
176Making a Part 36 offer alone may not be considered a reasonable attempt to use ADR prior to the issue of proceedings as it doesn't provide for the exploration of issues or options
1. ATrue
2. BFalse
177If no proceedings have been issued can the court normally be involved in making a consent order?
1. AYes
2. BNo
178Where a non-adjudicative ADR process such as negotiation or mediation has been used, a settlement reached before any proceedings have been issued will normally be recorded as a contract
1. ATrue
2. BFalse
179Where an adjudicative process has been used, can the resulting decision equally be enforceable on the basis of contractual principles?
1. AYes
2. BNo
180In a settlement reached without issue of proceedings the court will normally have no power to make any order as to costs
1. ATrue
2. BFalse
181If there is an agreement on all issues, including who should pay costs, and that is recorded in writing save that the amount has not been agreed, can proceedings be brought for the assessment of costs?
1. AYes
2. BNo
182Which of the following can a court take into account if proceedings are later issued?
1. AOffers to settle
2. BConduct of the parties at the pre-action stage
3. CConduct of the parties during proceedings
183Which of the following is NOT a core requirement of the Practice Direction?
1. AExchange of letters setting out sufficient details of the matter
2. BParties to consider whether they can make a Part 36 offer
3. CEncouraging the parties to exchange sufficient information about the matter in dispute
4. DParties to consider whether some form of ADR process might enable them to settle the matter
184What might reasonable consideration of the use of ADR before claim include?
1. AAdvice from the lawyer to the client on the potential benefits of ADR
2. BIf no ADR is thought appropriate, the reasons why
3. CIf the other side refuse to use ADR, providing reasons outlining why they have acted unreasonably
4. DAssessing costs
5. EProvision of sufficient information of the matters in dispute
185Responding to a proposal in relation to ADR made before claim might include what?
1. AIf proposal accepted, any terms in relation to the acceptance
2. BSuggestion of a more appropriate form of ADR
3. CIf proposal refused, sufficient reasons to show refusal is reasonable
4. DRequest for further information before a decision on ADR is taken
186A court may be slow to accept non-compliance that isn't clearly justified
1. ATrue
2. BFalse
187Which of the following is NOT a potential justification for non-compliance?
1. AIf the relevant limitation period is about to expire it may be necessary to issue proceedings to ensure they are issued in time
2. BA need to take action urgently
3. CNon-compliance by another party
188If parties fail to act reasonably and proportionately in actively seeking to settle their dispute, they may find that the court will be increasingly willing to penalize their conduct by doing what?
1. AOrdering that they pay their own costs
2. BMaking an adverse costs order
3. COrdering that they pay everyone's costs
189In Halsey v Milton Keynes, the compulsion of ADR would be regarded as an X Y on the right of access to the court and, therefore, a violation of Article 6 of the ECHR.
What do X and Y stand for?
1. AFundamental constraint
2. BUnacceptable constraint
3. CUnacceptable hindrance
190A mandatory order directing the parties to take part in a non-adjudicative ADR process, such as mediation, may not be a breach of Article 6 provided the parties can still continue with court proceedings if they failed to what?
1. AAgree on which ADR process to use
2. BPay costs
3. CReach a settlement
191In some cases there is a requirement of mandatory consideration of mediation
1. ATrue
2. BFalse
192Furthering the overriding objective does not include encouraging parties to use an ADR procedure if the court considers that appropriate
1. ATrue
2. BFalse
193The court has to accept the reasons put forward by any of the parties for refusing to try to settle the action or consider ADR at the Directions Questionnaire stage.
1. ATrue
2. BFalse
194A stay avoids the need for a party to prepare for the ADR process and the various stages of the litigation process at the same time.
1. ATrue
2. BFalse
195A stay will be for a period of how long?
1. A14 days
2. B28 days
3. C1 month
196If a stay is granted for ADR to be attempted, the parties must keep the court informed about the outcome of the ADR process.
1. ATrue
2. BFalse
197If no settlement is reached during the ADR process, will the parties need to formally dispose of the court proceedings?
1. AYes
2. BNo
198If no settlement is reached during the ADR process, then the parties will need to apply to the court to get the stay lifted (if it hasn't expired)
1. ATrue
2. BFalse
199The court may give effect to ADR by upholding and enforcing ADR clauses
1. ATrue
2. BFalse
200What might an ADR clause include?
1. AIt may define a particular ADR method which should be used
2. BIt may specify who pays what costs
3. CIt may specify a number of methods that need to be exhausted in turn before litigation can be commenced/continued
4. DIf an adjudicative form of ADR procedure is specified by the clause, the clause may also specify that the parties are to be bound by the decision
201The court will give effect to ADR clauses regardless of the type of ADR process that the parties have agreed to use
1. ATrue
2. BFalse
202The procedure set out in the contract does not need to be clear and unambiguous in order to be enforceable
1. ATrue
2. BFalse
203Provided the clause is sufficiently clear, in exercising its discretion to enforce such clauses by staying proceedings commenced in breach of the clause, which of the following factors will the court NOT consider?
1. AExtent to which parties have complied with the requirements in any pre-action protocol
2. BThe desired outcome of the agreement for both the parties
3. CWhether the dispute is suitable for determination by the agreed ADR process
4. DCosts of that ADR process compared to the costs of litigation
5. EWhether a stay would accord with the overriding objective
204Each party will be liable to pay their own costs and expenses in relation to an ADR process
1. ATrue
2. BFalse
205The possibility that liability for expenses, and costs incurred may shift to another party is not an important consideration in comparing the use of litigation and ADR.
1. ATrue
2. BFalse
206Costs can be shifted in and in relation to the use of ADR through the use of what?
1. APart 36 offer
2. BQOCS
3. CGeneral powers of the court in relation to sanctions and costs where there has been a failure to make reasonable use of ADR
207The parties can explicitly agree in advance that if the ADR process fails the court will have a discretion as regards costs if they so wish
1. ATrue
2. BFalse
208In non-adjudicative ADR, whatever is agreed as regards expenses can't be varied by agreement
1. ATrue
2. BFalse
209A set figure can be agreed in relation to costs, or a simple process for determining what should be paid
1. ATrue
2. BFalse
210In arbitration, can the parties agree to give the arbitrator/adjudicator power to award costs?
1. AYes
2. BNo
211Other than in arbitration, the 3P will only have such power in relation to costs as the parties agree
1. ATrue
2. BFalse
212If the dispute is not fully resolved through ADR and litigation continues, will the general discretion of the court in relation to costs under Part 44 apply?
1. AYes
2. BNo
213When making a costs order, the judge will have regard to all the circumstances, including what?
1. AThe conduct of all the parties
2. BThe reasonableness of the parties
3. CAny admissible offer to settle
4. DWhether a party has succeeded in part of his or her case
214Where a case is settled prior to the issue of proceedings the powers of the court are unlimited
1. ATrue
2. BFalse
215If an ADR process fails, the court is likely to regard itself as bound by any contractual agreement that has been made by the parties as regards the expense of ADR
1. ATrue
2. BFalse
216Where settlement has been reached after the issue of proceedings, the court should be informed
1. ATrue
2. BFalse
217It is possible for a court to make a decision on costs alone where the parties have reached agreement on all other matters, either by agreement, or for example if an expert determination has been made by a person who wasn't given authority to make a decision as to costs. Which one of the following principles will NOT be applied?
1. AThe court should award costs in a way that is fair and reasonable in the circumstances
2. BThe court has power to make a costs order when the substantive proceedings have been resolved without a trial but the parties have not agreed costs
3. CThe overriding objective is to do justice between the parties without incurring unnecessary court time and consequently additional cost
4. DIn the absence of a good reason to make any other order, the fall-back position is to make no order for costs
218Are the costs of interim applications made in connection with the use of ADR subject to the normal court discretion?
1. AYes
2. BNo
219A party's expenses in relation to ADR can't be recovered as damages in subsequent litigation against a 3P
1. ATrue
2. BFalse
220Will the expenses of a separate ADR process remain a matter of any agreement made by the parties?
1. AYes
2. BNo
221There is no distinction between the costs of the ADR process (which will fall as agreed in the ADR agreement) and the other costs of the case
1. ATrue
2. BFalse
222If the amount of costs payable isn't agreed or specified it will need to be assessed.
1. ATrue
2. BFalse
223If the terms proposed are accepted the dispute is resolved, but a Part 36 offer may also what?
1. AInitiate an ADR process to refine the terms offered
2. BBe used to protect a party's position after an unsuccessful ADR process
3. COffer an earlier opportunity to resolve the dispute
224Costs shifting is the norm in many forms of ADR
1. ATrue
2. BFalse
225An offer that doesn't meet all Part 36 requirements will stand as an offer without Part 36 consequences
1. ATrue
2. BFalse
226An offer to pay the full amount claimed is still a Part 36 offer
1. ATrue
2. BFalse
227Once made, a Part 36 offer stays in effect and can be accepted after the relevant period
1. ATrue
2. BFalse
228The effect of QOCS is that a claimant can still recover costs if successful, but will generally be at risk of having to pay the defendant's costs if the claim fails
1. ATrue
2. BFalse
229The court can penalize a party when they unreasonably refuse to...
1. AComply with an order made by the court directing the parties to attempt to resolve the dispute by ADR
2. BAccept an offer made by the other side to attempt to settle the dispute using an ADR process before the issue of proceedings
3. CAccept an invitation by the other side to use an ADR process during the course of litigation, or even after judgment and prior to the hearing of an appeal
230Which one of the following orders can a court can make when penalizing a party?
1. ADepriving a party of costs (even if they're successful in the litigation)
2. BOrdering them to pay some or all of the other side's costs (even if successful)
3. COrdering them to pay costs on an indemnity basis
4. DOrdering them to pay costs on the standard basis
5. EOrdering a higher rate of interest to be paid on damages awarded
6. FDepriving a party of interest on damages awarded by the court
231Non-compliance can include an unreasonable refusal to consider ADR
1. ATrue
2. BFalse
232Which one of the following is NOT a sanction that a court can impose for non-compliance with the protocols?
1. AStaying the proceedings
2. BDefendant pays damages at a lower rate
3. COrdering that the party at fault pays the costs/part of the costs, of one or more of the other parties
4. DParty at fault pays costs on an indemnity basis
5. EClaimant denied interest on all/part of the sum/interest at a lower rate
6. FDefendant pay damages at a higher rate (not exceeding 10% above the base rate)
233In Halsey v Milton Keynes, it was held that the court will consider what in showing the party acted unreasonably, and thereby the general rule that costs follow the event should be departed from?
1. ANature of the dispute
2. BMerits of the case
3. CWhether the costs of the ADR process would be disproportionately high
4. DBehaviour of the parties
5. EThe extent to which other settlement methods have been attempted
6. FAttempts to settle
7. GWhether any delay in setting up and attending ADR would have been prejudicial
8. HWhether the ADR process had a reasonable prospect of success
234The Halsey factors do not apply where a claimant pursues proceedings rather than consider ADR through a compulsory scheme established by the Financial Services Authority
1. ATrue
2. BFalse
235In what situations will ADR not be appropriate?
1. AWhere court is required to determine issues of law or construction
2. BLegal precedent is necessary
3. CIssues involving allegations of fraud/commercially disreputable conduct may be raised that require resolution at trial
4. DUrgent injunctive relief
5. EA search order or a freezing order may be required
6. FPoint of law may need to be resolved
7. GCase may be a test case
8. HCase is technically complex
236A party's belief that the case was strong is likely to be a sufficient justification for refusing ADR
1. ATrue
2. BFalse
237A successful party will not be deprived of some or all of their costs for rejecting mediation if the claim did not warrant any issues of sufficient substance to justify mediation
1. ATrue
2. BFalse
238Every mediation has to end with a payment to the claimant
1. ATrue
2. BFalse
239Where the parties have shown a genuine and constructive willingness to resolve the issues between them, will the successful party automatically be penalized for not agreeing to a form of ADR proposed by the other side?
1. AYes
2. BNo
240It may not be reasonable for a successful party with a strong case to refuse to engage in mediation where they had indicated at all times that they were prepared to engage in without prejudice discussions and there was no good reason why that approach should not be tried
1. ATrue
2. BFalse
241A successful party may be penalised in costs for rejecting mediation, even if they have made an effective Part 36 offer or unreasonably refused an offer to settle made outside the regime in Part 36
1. ATrue
2. BFalse
242Who is the burden on to show that an ADR process such as mediation would have had a reasonable prospect of success?
1. ASuccessful party
2. BUnsuccessful party
243Where there's no objective reason to conclude that ADR has no reasonable prospect of success, this burden will not be discharged
1. ATrue
2. BFalse
244Apart from the Halsey factors, what other factors will be taken into consideration in deciding whether a party was unreasonable in refusing ADR?
1. AWhether an ADR order had been made by the court
2. BWhether further information or expert evidence needed to be obtained and/or disclosed before ADR was undertaken
3. CThe impact that Part 36 offers have on a refusal to engage in ADR
4. DWhether another form of ADR would have been more appropriate than the one proposed
245Can the court penalize a successful party for refusing to use mediation, even if they had made other reasonable attempts to settle the matter such as making a Part 36 offer which the party does not beat at trial?
1. AYes
2. BNo
246There is a distinction between cases where the unsuccessful party rejects an offer of ADR made by the other side and where there's been a failure by the successful party to initiate ADR proceedings
1. ATrue
2. BFalse
247The courts are prepared to penalize a party in costs if they failed to make any offer or a reasonable offer to settle the claim
1. ATrue
2. BFalse
248Where the unsuccessful party has unreasonably delayed in consenting to mediation, this won't lead to an adverse costs order
1. ATrue
2. BFalse
249Where both parties are at fault, the court may penalize both of them by refusing to make any costs order at all, whatever the outcome of the case
1. ATrue
2. BFalse
250The court won't penalize a successful party by depriving them of the costs of the appeal for refusing ADR after trial and pending an appeal
1. ATrue
2. BFalse
251Can the court penalize a successful party for agreeing to explore settlement in an ADR process, and then backing out of it at the last moment?
1. AYes
2. BNo
252It is likely that the court can only enquire into conduct that took place in the mediation if all parties to the mediation consent to waive privilege and confidentiality
1. ATrue
2. BFalse
253The court can't make an indemnity costs order where there is unreasonable conduct to a high degree
1. ATrue
2. BFalse
254Which one of the following is NOT a circumstance in which the requirements for making an indemnity costs order could be met?
1. AWhere a party has refused to partake in a particular ADR process
2. BWhere there has been an unreasonable failure to accept offers of settlement
3. CWhere a party has resisted a sensible approach to finding a solution to the proceedings
255If there are legitimate difficulties in using ADR, these can only be overcome if they are addressed at the time
1. ATrue
2. BFalse
256Are communications passing between the parties that are aimed at settlement privileged from disclosure?
1. AYes
2. BNo
257If a party makes an offer to explore settlement using some form of ADR process, they should make sure that correspondence is marked 'without prejudice save as to costs'
1. ATrue
2. BFalse
258What are the key features of negotiation?
1. AFlexible process
2. BRigid process
3. CWritten communication
4. DOral communication
5. EWritten/telephone negotiations
6. FMeetings
259The negotiation process is subject to contractual principles
1. ATrue
2. BFalse
260It will be a matter of fact when terms are sufficiently clear and have been accepted so that a binding agreement has been reached
1. ATrue
2. BFalse
261In negotiation, any agreement reached by the lawyer will bind the client unless it has been agreed in advance that any terms agreed will be subject to client approval.
1. ATrue
2. BFalse
262Which of the below are key ethical principles in negotiation?
1. ALawyer should have authority from the client to settle
2. BLawyers should act within instructions
3. CAny limit on authority should be made clear in the negotiation if relevant
4. DDuty not to mislead an opponent
5. ELawyer should respect confidentiality when negotiating
263In negotiation, will the principle of without prejudice apply to all communications made as part of an attempt to settle a case?
1. AYes
2. BNo
264A meeting to discuss 'battle tactics' rather than negotiate is privileged
1. ATrue
2. BFalse
265There are specific requirements for the exchange of evidence in relation to negotiation.
1. ATrue
2. BFalse
266Any document used in a negotiation which isn't otherwise disclosable will be protected by the principle of without prejudice
1. ATrue
2. BFalse
267In negotiation, a lower number of participants will make the process more cost effective and easier to control.
1. ATrue
2. BFalse
268There are formal rules for procedure in a negotiation
1. ATrue
2. BFalse
269In negotiation, offers and concessions should be clearly stated whether in writing or orally to avoid any confusion
1. ATrue
2. BFalse
270In negotiation, once agreed, does the settlement bind the parties immediately?
1. AYes
2. BNo
271In negotiation, if agreed terms are not all incorporated into a later order, can they still be enforced if there's not been an agreement that only a final agreement in writing will be binding?
1. AYes
2. BNo
272Mediation is effectively a facilitated and more structured form of negotiation
1. ATrue
2. BFalse
273Which of the following DOES not describe mediation?
1. AConfidential
2. BCan be arranged speedily
3. CTakes a long time to arrange
4. DNeutral 3P facilitates discussions and negotiations between the parties in dispute
5. EStructured but flexible process
6. FUnstructured but rigid process
7. GFormal setting
8. HDefined period of time
274In mediation, do the parties themselves remain in control of the issues they would like to discuss?
1. AYes
2. BNo
275Which of the following is NOT a way in which mediation can assist the negotiation process between the parties?
1. AMediator can help parties to work through deadlock
2. BMediator adds a new dynamic and creates a balance between different negotiating styles and personalities of parties and their lawyers
3. CMediator can be skilled at managing and diffusing strong feelings that may be a barrier to reaching settlement
4. DMediator can give ideas to parties on how to resolve issues by putting forward their own views
276Before the parties embark on mediation they should first attempt to settle the dispute by direct negotiation between them as this will normally be less expensive and may narrow issues
1. ATrue
2. BFalse
277Is mediation suitable for all disputes which raise issues capable of being resolved by negotiation?
1. AYes
2. BNo
278In mediation, the parties can't contractually bind themselves by a dispute resolution clause to attempt to resolve a dispute by mediation before embarking on litigation (or arbitration)
1. ATrue
2. BFalse
279Mediation can be useful for resolving multi-party disputes involving multiple issues
1. ATrue
2. BFalse
280Mediation doesn't need to be considered even if the court has encouraged or directed the parties to attempt settlement by mediation, or where the parties may face adverse costs orders or other sanctions if they unreasonably refuse to mediate
1. ATrue
2. BFalse
281When can mediation take place?
1. AAt any stage up to trial
2. BEven pending an appeal
3. CBefore trial begins
282If mediation can't reasonably be undertaken before issue of proceedings, the best time to attempt it may be before exchange of statements of case or before disclosure of documents
1. ATrue
2. BFalse
283The later the mediation takes place in the litigation, the greater the decrease in the costs savings that can result from a mediated settlement.
1. ATrue
2. BFalse
284Which of the following can the court NOT do to make a party consider mediation?
1. AOffer strong judicial encouragement
2. BCompel parties to mediate
3. CMake the consideration of mediation mandatory
4. DStay proceedings
5. EAdverse costs orders if parties have acted unreasonably
6. FOrders for advance disclosure of information/documents relating to one or more issues in the case
285Which one of the following does NOT describe the mediator's role?
1. AOverseeing the process
2. BOrganising the mediation process
3. CActing as facilitator during the process
4. DActing as intermediary between the parties
286In acting as a facilitator, the mediator will encourage the parties to think about their BATNA and WATNA
1. ATrue
2. BFalse
287A mediator may be rigorous and testing as 'devil's advocate', but should not do or say anything that gives the impression he or she is not impartial
1. ATrue
2. BFalse
288What are the key ethical principles that a mediator must abide by?
1. AMediators must be competent and knowledgeable in the process of mediation
2. BA mediator must ensure there's no conflict of interest with any of the parties directly or indirectly affected by the dispute
3. CMediator should ensure the parties understand the nature and purpose of the mediation process, the terms of the mediation agreement, fees payable and obligations of confidentiality imposed on parties and mediator
4. DMediator should act fairly between the parties, and be careful not to put any undue pressure on a party to settle the dispute
5. EMediator must keep confidential all information arising out of or in connection with the mediation (including that it's to take place/has taken place) unless compelled to give full disclosure on public policy grounds
6. FMediator must may every possible step is taken to enable the parties to reach a settlement
7. GMediator should terminate the mediation, and inform parties if appropriate that they believe a settlement to be unenforceable or illegal or it's unlikely that continuing will result in settlement
289Parties do not have the right to withdraw from the mediation at any time
1. ATrue
2. BFalse
290The duty of confidentiality will apply even after the mediation process has been completed or terminated
1. ATrue
2. BFalse
291In mediation, the express or implied term of confidentiality exists between who?
1. AParties themselves
2. BParties and the mediator
292In mediation, in which of the following circumstances may the court override confidentiality?
1. AWhen it's necessary for them to ascertain what was said and done in the mediation (economic duress)
2. BAction of one of/both the parties against the mediator for breach of contract/negligence
3. CAction by a party against their solicitors for professional negligence arising out of their conduct of a claim which was settled at mediation/arising out of their conduct at the mediation
293Which of the following is NOT another exception to confidentiality?
1. ADisclosure required by law
2. BNecessary to prevent risk of harm to public by large
3. CRisk of to health, life or well-being of a person or threat to their safety if confidential information not disclosed
4. DOne party consenting to it
5. EPreventing criminal activity
294The without prejudice rule in mediation means that communications that take place in relation to or during the mediation which are made for the purposes of settling the dispute can be relied on or referred to in subsequent court proceedings if the mediation is unsuccessful
1. ATrue
2. BFalse
295The mediation agreement itself is protected by the without prejudice principle
1. ATrue
2. BFalse
296The without prejudice rule exists for the benefit of the parties and it can be waived by them
1. ATrue
2. BFalse
297There are two main forms of mediation: facilitative and evaluative. Which is the norm?
1. AEvaluative
2. BFacilitative
298The mediator, as a neutral or impartial 3P, helps the parties to solve their own problems by facilitating negotiations between the parties.
1. ATrue
2. BFalse
299A facilitative mediator will focus primarily on the strict legal merits of the parties' positions, rather than the real interests and concerns of the parties
1. ATrue
2. BFalse
300Which one of the following will a facilitative mediator NOT do?
1. AAsk questions that test the strengths and weaknesses of each side's case
2. BHelp parties identify what they want to achieve from the dispute
3. CHelp the parties to work out a creative solution that's in their best interests
4. DDiscuss tactics with the parties about how best to achieve their desired outcome
5. EAssist parties to negotiate more effectively by formulating offers in a way that may be more attractive to the other side
6. FHelping parties consider the timing and staging of offers and concessions
301A facilitative mediator is likely to exert less control over the process than an evaluative mediator
1. ATrue
2. BFalse
302An evaluative mediator will go beyond the role of facilitator
1. ATrue
2. BFalse
303An evaluative mediator may also be asked to recommend a form of settlement, or a range of options for that settlement
1. ATrue
2. BFalse
304The mediator will not usually evaluate a claim or issue unless specifically invited to do so
1. ATrue
2. BFalse
305In evaluative mediation, the mediator must take great care not to impose his or her evaluation or preferred outcome on the parties.
1. ATrue
2. BFalse
306Depending on the nature of the dispute and the needs of the parties, it may be important for the mediator to have sound knowledge of the legal, technical, or factual issues in dispute.
1. ATrue
2. BFalse
307Complex or multi-party disputes or international disputes won't require more than one mediator to be appointed
1. ATrue
2. BFalse
308How long does a typical mediation last for?
1. AHalf a day
2. BOne day
3. CTwo days
309If the parties require an expert to be present at the mediation should this be discussed with the mediator in advance?
1. AYes
2. BNo
310If position statements are exchanged by the parties, there is no reason why an additional, confidential position statement should not be prepared for the mediator's eyes only
1. ATrue
2. BFalse
311If there is no objection to disclosure, each party may wish to arrange for copies of documents to be sent directly to the other party or provide additional copies to the mediator or ADR provider with a request that they be sent to the other side.
1. ATrue
2. BFalse
312When the mediation begins and ends can often only be ascertained by examining the intention of the parties from the facts and circumstances of the case.
1. ATrue
2. BFalse
313Typically, how many stages will a typical mediation go through?
1. ATwo
2. BThree
3. CFour
4. DFive
314The opening stage consists of introductions and each party setting out their formal position in relation to their issues in the case
1. ATrue
2. BFalse
315The exploration stage has to take place in an open joint meeting
1. ATrue
2. BFalse
316The negotiating (bargaining) stage will usually take place in private meetings with the mediator acting as broker between the parties
1. ATrue
2. BFalse
317The settlement (or closing) stage will usually take place in private meetings
1. ATrue
2. BFalse
318At the conclusion of each party's opening statement, the mediator may ask questions to clarify anything which is unclear
1. ATrue
2. BFalse
319The second party to deliver the opening statement has to respond to respond to the first party's statement
1. ATrue
2. BFalse
320Separate private meetings tend to be the key stage in the mediation process
1. ATrue
2. BFalse
321In some mediations, will it be beneficial for the parties to negotiate some or all of the issues directly with one another?
1. AYes
2. BNo
322If a settlement is reached, the mediator will confirm the terms agreed with each of the parties
1. ATrue
2. BFalse
323If a written signed agreement isn't drawn up at the mediation, there is no possibility that the parties may resile from the settlement before the binding agreement has been drawn up.
1. ATrue
2. BFalse
324If no settlement is reached, the mediator usually will record this
1. ATrue
2. BFalse
325In med-arb, the process provides that if no settlement can be agreed at the mediation, the parties may invite the mediator to act as arbitrator to determine the dispute and make an award that will be binding or non-binding as agreed by the parties
1. ATrue
2. BFalse
326Arb-med does not reverse the med-arb process
1. ATrue
2. BFalse
327The relative informality of some ADR processes compared to litigation can lead to less central issues being overlooked.
1. ATrue
2. BFalse
328Where the agreement is essentially oral (e.g. as in negotiation or mediation, there may be a tendency to leave some points slightly vague to achieve an agreement
1. ATrue
2. BFalse
329Which one of the following is NOT the responsibility of the lawyer to ensure in recording a settlement?
1. ATerms are comprehensive
2. BTeerms are sufficiently clear and detailed
3. CClient accepts the agreement
4. DClient approves of the agreement
5. ETerms are appropriately enforceable
6. FTerms are appropriately recorded
7. GClient understands agreement
330If there is disagreement between the client and their legal representatives over whether compromise terms should be accepted, consideration doesn't need to be given to the lay client's interests
1. ATrue
2. BFalse
331A lawyer acting for a publicly funded client who doesn't accept an offer of settlement should warn the client that there must be a report to the Legal Aid Agency
1. ATrue
2. BFalse
332Arbitration should not result in an award
1. ATrue
2. BFalse
333Early neutral evaluation should result in a report from the neutral 3P
1. ATrue
2. BFalse
334Successful mediations and negotiations normally result in an a written agreement
1. ATrue
2. BFalse
335To avoid uncertainty, it 's not uncommon for mediation agreements to include terms that any compromise will only be binding if made in writing
1. ATrue
2. BFalse
336A successful non-adjudicative ADR should result in a contract compromising the dispute.
1. ATrue
2. BFalse
337Where the whole dispute is settled the compromise agreement won't normally be stated to be in 'full and final settlement' of the dispute.
1. ATrue
2. BFalse
338A party who wishes to preserve their right to sue on other causes of action should expressly reserve that right in the compromise agreement
1. ATrue
2. BFalse
339At the end of a mediation or negotiation it's crucial for all the parties to take time to agree a written version of the terms agreed.
1. ATrue
2. BFalse
340When a final draft is agreed it will be signed by each party and copies are then made
1. ATrue
2. BFalse
341There is a specific form of written or oral statement for setting out the terms of a settlement.
1. ATrue
2. BFalse
342When a dispute relating to legal rights is settled it'll normally be in the interests of both parties to record the outcome in a form that's legally enforceable.
1. ATrue
2. BFalse
343Non-adjudicative ADR processes often lead to oral contracts
1. ATrue
2. BFalse
344An exchange of letters can form a contract in itself without any face-to-face ADR process where there's an appropriate offer and acceptance.
1. ATrue
2. BFalse
345Non-adjudicative processes commonly lead to a formal written contract
1. ATrue
2. BFalse
346In which of the following situations may a contract be appropriate?
1. AWhere the terms are complex
2. BWhere the parties require it as evidence
3. CWhere the outcome is particularly important
4. DWhere parties want a formal separate legal document for later reference
5. EWhere there's an ongoing commercial relationship
347Court powers to award interest and make orders as to costs only apply to court orders
1. ATrue
2. BFalse
348Agreed terms don't need to be enforceable
1. ATrue
2. BFalse
349Where proceedings have been issued, can terms of settlement of a dispute following an ADR process be incorporated into a court order or judgment?
1. AYes
2. BNo
350Can settlements restricted to common law relief (money; delivery of goods), the stay or dismissal of the case, and costs, be made as consent orders without involving a judge?
1. AYes
2. BNo
351Which of the following is NOT a method of recording a settlement?
1. ARecording the agreement in a Tomlin Order
2. BSettlement agreement
3. CConsent order staying all proceedings
4. DInforming the court that no settlement has been made
5. EJudgment for the agreed sum (and costs), subject to a stay of execution pending payment by stated instalments
6. FInforming the court that the case has been settled on terms recorded in a contract
7. GInforming the court that the case has been settled upon terms endorsed on counsels' briefs
8. HJudgment for immediate payment of an agreed sum together with costs
352The fact that a settlement is reached after proceedings have been issued means that the terms have to be recorded in a court order
1. ATrue
2. BFalse
353Endorsement of settlement on backsheets: when is this method most appropriate?
1. AWhere the agreement is complex
2. BWhere the agreement is simple
354Interim orders can be used to record compromise agreements once proceedings have been issued, and if there's been a pre-commencement application for an interim order.
1. ATrue
2. BFalse
355Which one of the following is NOT normally dealt with on the face of a Tomlin Order?
1. ADetails of the terms of the compromise
2. BStay of the proceedings
3. CEach party to have liberty to apply to the court
4. DThe payment and assessment of costs
356A possible drawback of a Tomlin Order is that enforcement powers for the terms of the schedule are more limited than for the court order itself
1. ATrue
2. BFalse
357Which one of the following is NOT an option for the future of the litigation?
1. AEntry of judgment
2. BOffering to settle
3. CDiscontinuing the claim
4. DDismissing the claim
5. EStaying the proceedings
358Enforcement is of the compromise, decision, or award, rather than the original dispute
1. ATrue
2. BFalse
359Insolvency is often an alternative to enforcement by proceedings in the civil courts
1. ATrue
2. BFalse
360Which one of the following is NOT one of the factors which drive the use of online options for dispute resolution?
1. ADisputes can be resolved quickly because of the flexibility offered
2. BDisputes can be resolved cost-effectively as the expense of conventional processes can be reduced and streamlined
3. CParties tend to prefer online ADR
4. DSoftware can provide sophisticated analysis of figures and risks
361Which forms of ADR can be carried out online?
1. ANegotiation
2. BExpert evaluation
3. CMediation
4. DArbitration
5. EOffer and acceptance
362Early Neutral Evaluation (ENE) is an assessment and evaluation of the facts, evidence and/or the legal merits of one or more of the issues in the case or of the case as a whole.
1. ATrue
2. BFalse
363It's usually undertaken on behalf of the parties separately
1. ATrue
2. BFalse
364Why is ENE different from mediation?
1. AMediation is a facilitative process; ENE is an advisory and evaluative process
2. BMediation is an advisory and evaluative process; ENE is a facilitative process
3. CMediation is an advisory process; ENE is an evaluative process
365Can ENE take place within the court system?
1. AYes
2. BNo
366ENE can be employed at any stage of the dispute
1. ATrue
2. BFalse
367ENE is particularly useful where one or more of the parties has taken an unrealistic and entrenched view of one or more of the issues (or of the case as a whole)
1. ATrue
2. BFalse
368The parties can't control the amount and form of the information that is placed before the evaluator
1. ATrue
2. BFalse
369In ENE, the evaluator will evaluate the evidence (oral and/or written) and the law bearing in mind the submission of each party and produce a recommendation setting out his or her assessment of the merits of the dispute and the likely outcome of it.
1. ATrue
2. BFalse
370In ENE, the evaluation is binding and the parties have to accept it
1. ATrue
2. BFalse
371Conciliation is a facilitative dispute resolution process in which a neutral 3P seeks to assist the parties to reach a settlement
1. ATrue
2. BFalse
372Which of the following describe conciliation?
1. AAdjudicative
2. BNon-adjudicative
3. CFacilitative
4. DEvaluative
5. EConfidential
6. FWithout prejudice
7. GPublic
373Which one of the following is NOT a typical outcome that may be available in an individual matter under different complaints and grievance processes?
1. AAn explanation
2. BAn apology
3. CCompensation
4. DReduction of a bill or a refund
5. EA small gift
6. FDisciplinary action
374Expert determination is a process in which an expert (or a neutral) is appointed to make a determination on the issues referred to him or her by the appointing parties
1. ATrue
2. BFalse
375Expert determination is commonly employed in cases of a technical nature where the parties are likely to benefit from a determination by an appropriate expert such as an accountant, surveyor, or engineer
1. ATrue
2. BFalse
376In expert determination, parties may not contractually bind themselves
1. ATrue
2. BFalse
377Where the parties use expert determination to resolve a dispute, they usually agree that the determination is final and binding on them, and typically this recorded in the contract.
1. ATrue
2. BFalse
378Expert determination is subject to the supervision of the court
1. ATrue
2. BFalse
379In ED, where the determination is to be final and binding on the parties, the contract may provide for some exceptional circumstances in which the determination can be challenged
1. ATrue
2. BFalse
380In ED, the expert is acting as the decision-maker, not as a witness
1. ATrue
2. BFalse
381Expert determination is a useful and cost-effective way of determining disputes of a highly technical nature
1. ATrue
2. BFalse
382ED is most commonly used where the parties agree in advance in the underlying contract between them to use ED to resolve a dispute arising out of the contract
1. ATrue
2. BFalse
383Which one of the following matters will NOT be taken into consideration when drafting the contractual provisions relating to ED?
1. AThe type of dispute that may be referred for ED
2. BQualifications of the expert
3. CThe need for the person so appointed to act as an expert and not an arbitrator
4. DMachinery for appointing the expert
5. EWhether further ED may be required
6. FProcedure that should be followed for the determination
7. GExtent to which the parties are to be bound by the determinator
8. HExtent to which they may be exceptions to the final and binding nature of the award
384In ED, can the parties retain a degree of control over the process and the appointed expert will usually seek to agree any appropriate procedural directions with the parties?
1. AYes
2. BNo
385In ED, the parties aren't under an implied duty cooperate with each other and with the expert in relation to the determination
1. ATrue
2. BFalse
386In ED the parties won't usually agree that the decision will be binding on them
1. ATrue
2. BFalse
387If one party refuses to comply with an ED clause in the contract, the other party may be entitled to damages for breach of contract
1. ATrue
2. BFalse
388In DE, reasons need only be given for the determination if the contract so provides
1. ATrue
2. BFalse
389The parties may agree in their contract that the expert's decision will only be binding on them in the absence of manifest error
1. ATrue
2. BFalse
390In DE, the decision can't be challenged if the expert has departed from his or her instructions in a material way
1. ATrue
2. BFalse
391In DE, a failure by one side to honour the decision will not amount to a breach of contract
1. ATrue
2. BFalse
392Arbitration involves an impartial arbitrator or tribunal considering both sides of a dispute and making decision on the issues raised by the parties
1. ATrue
2. BFalse
393Which of the following principles under the Arbitration Act 1996 are arbitrations subject to?
1. AThe object of them is to obtain the fair resolution of disputes by an impartial tribunal without unnecessary delay or expenses
2. BThe parties should be free to agree how their disputes are resolved
3. CThe court shouldn't intervene except as provided by the Act
394In order for there to be an effective reference to arbitration, what requirements must be met?
1. AMust be a dispute or difference
2. BDispute must be 'arbitrable' (i.e. needs to be a private law dispute rather than public one or one relating to legal status)
3. CMust be an agreement to arbitrate
4. DAgreement to arbitrate must be in writing
5. ENature of dispute must come within the terms of the arbitration agreement
6. FParties must find an arbitral tribunal willing to act and decide the dispute
7. GDispute must come within terms of the particular reference to arbitration
395Almost all types of dispute can be referred to arbitration
1. ATrue
2. BFalse
396If the arbitration is of some complexity, would it be sensible to hold a pre-trial hearing/conference?
1. AYes
2. BNo
397Which one of the following is NOT a type of award available to arbitrators?
1. ASummary awards
2. BProcedural orders
3. CInterim awards and awards on different issues
4. DMain awards
5. ECosts awards
398Cross-border enforcement of arbitral awards can usually be achieved through the New York Convention 1958
1. ATrue
2. BFalse

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Description: BPTC RODOC Quiz on RODOC quiz BPTC, created by Jennifer Moles on 03/02/2015.
Author: Jennifer Moles
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