Flashcards
Chapter 3: Alternative Dispute Resolution
Cards in this deck (22)
- 1What is alternative dispute resolution?As litigation is a last resort, the parties should seek to resolve disputes amicably before bringing proceedings against each other. This is achieved through ADR (being any means of settling disputes outside the traditional litigation process). It is referred to specifically in CPR and the court must encourage parties to use ADR if the court considers it appropriate.
- 2What are the methods by which ADR can be achieved?Arbitration (judicial and contractual), negotiation, mediation, conciliation and early neutral evaluation.
- 3What is negotiation?Negotiation is where parties or their lawyers discuss possible solutions to the problem either face to face or by correspondence. Such discussions can be open although they are usually "without prejudice". This means that the subject matter of those discussions is not revealed in any subsequent litigation if the discussions are unsuccessful, allowing the parties to negotiate freely.
- 4What are the advantages of negotiation?1. It can be done at any point in the process (i.e. before and/or during the litigation process).
2. The parties can walk away at any time.
3. It may avoid the need to bring proceedings or attend trial.
4. The outcome is usually confidential and private.
5. Avoiding litigation may preserve the relationship of the parties if it is an ongoing one. - 5What are the disadvantages of negotiation?1. Hiring a negotiator is potentially costly.
2. There are possible representation (solicitor or counsel) costs in without prejudice meetings.
3. The demands of the other side may be unrealistic, hampering progress. - 6What is mediation?The parties and an independent mediator gather at a neutral venue. Generally there is a public room for the parties and mediator to meet in and a number of private rooms. Initially, the parties will outline their dispute to the mediator in the presence of the other side. After this, the parties separate into private rooms and the mediator will speak to each other, often repeatedly, to try to reach a solution. If the parties reach agreement, it is written down and will be binding.
- 7What are the advantages of mediation?1. The parties agree a resolution of their choice, allowing wider scope than that of the courts.
2. This tailored "win-win" result compares favourably with the adversarial "win-lose" outcome of litigation and enables the parties to continue their relationship on a positive footing.
3. The parties can walk away at any time.
4. The mediator is independent and neutral.
5. It is a confidential process.
6. It is quicker and cheaper than litigation.
7. The parties cannot use information obtained in mediation in court as it is without prejudice. - 8What are the disadvantages of mediation?1. Hiring a mediator can be costly, even thought the parties generally split the costs.
2. The parties must pay their own costs of attending.
3. The other party may not share the same attitude to mediation as your client so that resolution is not guaranteed.
4. Mediation is unsuitable if a party wants to set a legal precedent (the benchmark by which similar cases will be dealt with).
5. It is unsuitable if a party needs an injunction.
6. If a client has an overwhelmingly strong case, he may prefer the court to find in his favour rather than compromise. - 9Cases issued in the County Court which are allocated to the small claims track will be automatically referred to mediation. True or false?True, provided that all parties have indicated their agreement. There are some exceptions, such as personal injury claims.
- 10What is judicial arbitration?A process in which parties seek a final and binding decision that deals with the areas of dispute. It can involve expert determination where the parties refer their dispute to a third party who is both neutral and a specialist in the area of the dispute. Alternatively, the parties can choose to go to an arbitration panel hearing, which is like a tribunal.
- 11What is contractual arbitration?Contractual arbitration is where the parties are contractually bound to use a particular arbitration process in the event of any dispute instead of pursuing the matter through the litigation process. It is common in certain industries like shipping and construction.
- 12What are advantages of arbitration?1. It is quicker than going to court.
2. It is likely to be cheaper, particularly if the arbitration scheme is run by a trade body as any fees associated with the process will usually be less than those required by the court.
3. The decision is made by an impartial third party who will have a degree of expertise in the matter.
4. The decision is final and binding on the parties and can be enforced by the courts.
5. It is private and confidential - there is no public decision.
6. There is no need for litigation. - 13What are the disadvantages of arbitration?1. An arbitration panel or expert are potentially costly.
2. Parties often want to be represented by lawyers, which adds significantly to the total cost of arbitration.
3. The process can be time-consuming.
4. The decision is binding with very limited rights of appeal. - 14What is conciliation?Conciliation is a similar process to mediation and negotiation with similar advantages and disadvantages. The main difference being the neutral conciliator plays a more active role in resolving the dispute rather than simply facilitating discussions. It has been used in complex multi-party disputes such as some employment disputes.
- 15What is early neutral evaluation?ENE is a form of ADR where parties refer their dispute to a third party (usually an expert) to make a preliminary assessment of the merits of the case. The aim is to determine the likely outcome of the dispute if it proceeds to trial. The neutral third party will hear evidence and discuss the case with each party on a without prejudice basis before making a recommendation.
- 16What does Part 3 state in relation to early neutral evaluation?The court's powers of case management specifically include ordering and hearing an ENE. The reason behind this is that parties are more likely to listen to advice from a judge particularly given the ever-increasing numbers of litigants in person, who may have an unrealistic view of their case.
- 17What are the advantages and disadvantages of early neutral evaluation?The advantages are that the process is quick and confidential and assists the parties in reaching a reasoned settlement. However, a disadvantage is that the option is non-binding.
- 18The court's role is simply to encourage the use of ADR where appropriate and the parties cannot be compelled to part against their wishes. True or false?True. However, the pre-action protocol stresses that litigation should be seen as a last resort. Where a party unreasonably refuses a proposal that ADR should be used, the court may take this into account later when it comes to deciding what order to make as to costs.
- 19What is the rule in relation to co-operation in respect of litigation?As part of its active case management function, the court encourages the parties to co-operate with each other in the conduct of litigation. On occasion, correspondence between the solicitors involved in litigation may become relevant to a matter before the court. If, on reading these letters, the judge decides that either party has been obstructive or difficult, costs may be ordered against the firm of solicitors deemed to be in the wrong.
- 20Are there sanctions if the client refuses to take part in ADR?As well as the commercial advantages and costs savings which may result from using ADR, there are sanctions if the client refuses to take part. It is recognised it would be futile to order an unwilling party to refer their dispute to mediation but if the client unreasonably refuses to do so, the court may penalise the offending party in costs, whether the client wins or loses.
- 21Is failure to respond at all to an invitation to participate in ADR unreasonable?Yes, even if there is good reason for failing to respond to the invitation.
- 22Whilst parties can turn down invitations for ADR if they consider it inappropriate, they cannot be compelled to take part but they must engage with the idea. True or false?True. As a minimum, a party refusing ADR is advised to respond to his opponent in writing, setting out his reasons for doing so.
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- Level 3 Civil Litigation Flashcards on Chapter 3: Alternative Dispute Resolution, created by Emily Greig on 13/11/2018.
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