Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

ADR > 01 - Overview ADR > Flashcards

01 - Overview ADR Flashcards

1
Q

ADR

Advantages

A 
Involvement = Empowerment
Choice = Adjudicative; Non Adjudicative
Control = Issues; Procedure; Information; Settlement
Neutral 3P = Perspective; Re-evaluation
Confidential = NOT Public; Without Prejudice
Maintain = Reputation; Relationship
Speed = Time; Paper Based
Cost Effective
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

ADR

Disadvantages

A

Expectation
Non Disclosure
Delay = Time; Litigation; Pre-action (Injunction; Disclosure)
Cost = ADD Litigation

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

NON Adjudicative

WHAT

A

Informal = Explore Options
Non Binding = Decision; Settlement
Parties Approve Settlement

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

NON Adjudicative

TYPES

A

Offers to Settle
Negotiation
Mediation
Early Neutral Evaluation

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

Adjudicative

WHAT

A

Formal Procedure
Binding = Decision; Settlement
Limited = Challenge; Appeal

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

Adjudicative Options

TYPES

A

Expert Determination
Adjudication
Arbitration

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

Offers to Settle

TYPES

A

Open
Without Prejudice
Part 36

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

Part 36

Defendant NOT Accept

A 
Defendant PAY = Costs; Interest @ 10%
Additional Damages
10% < £500k
5% £500k < > 1m
Total = £75k
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

Part 36

Claimant Accept

A

Defendant PAY Costs < Date of Acceptance

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

Part 36

Claimant NOT Accept

A

Defendant PAY Costs < Date of Acceptance

Claimant PAY Costs > Date of Acceptance

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

Negotiation

WHO

A

Lawyers = Representative

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

Negotiation

Settlement Agreement

A

Enforceable Contract

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

Negotiation

Advantage

A

Reality = Entrenched View; Strength; Weakness
Issues = Non Legal
Creative = Settlement
Non Binding = Starting Point; Accept OR Reject

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

Negotiation

Disadvantages

A

Preparation
Strategy OR Tactics = Strong; Weak
NO Result

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

Mediation

WHO

A 
Mediator = Neutral
Lawyers = Representative
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

Mediation

Settlement Agreement

A

Memorandum of Agreed Terms

Enforceable Contract

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

Mediation

Advantages

A

Reality = Entrenched View; Strength; Weakness
Issues = Non Legal
Creative = Settlement
Non Binding = Starting Point; Accept OR Reject

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

Mediation

Disadvantages

A

Preparation
Strategy OR Tactics = Strong; Weak
Mediator = SKE
NO Result

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

Early Neutral Evaluation

WHO

A

Evaluator = Neutral / Expertise

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

Early Neutral Evaluation

WHEN

A

Contract Clause = Dispute MUST Evaluation

Request

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

Early Neutral Evaluation

Advantages

A

Technical Issues
MAY Offer = Without Prejudice; Part 36
MAY Assist = Mediation; Negotiation

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

Early Neutral Evaluation

Disadvantages

A

Preparation
Evaluator = SKE
NO Result
NOT Facilitative

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

Expert Determination

WHO

A

Expert

Specialist Field = Accountant; Engineer

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

Expert Determination

Advantages

A

Contract Clause

Technical Dispute

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
Q

Expert Determination

Disadvantages

A

NO Control = Decision; Reason
NO Creative
Binding
Limit = Challenge

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
26
Q

Adjudication

WHO

A

Adjudicator

Specialist Field = Accountant; Engineer

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
27
Q

Arbitration

WHO

A

Tribunal = Independent; MAY Expertise

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
28
Q

Arbitration

Advantages

A

Contract Clause
Industry Process
Developed Procedure

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
29
Q

Arbitration

Disadvantages

A

NO Control = Decision; Reason
NO Creative
Binding
Limit = Challenge; Appeal

30
Q

Hybrid Processes

WHAT Mediation > Arbitration

A

Binding Decision IF NO Settlement

31
Q

Hybrid Processes

Advantages

A

Mediation Window
MUST Dispute Resolution
Enforceable Contract
Cost Effective

32
Q

Hybrid Processes

Disadvantages

A

Non Disclosure
Arbitrator = Mediator
Confidential Information

33
Q

Litigation

Advantages

A

MUST Consider ADR
Developed Procedure = Clear
Court Power = Directions; Orders; Sanctions
Enforce Decision

34
Q

Litigation

Disadvantages

A 
Adversarial
Complex = CPR; Evidence
NO Control = Decision; Reason
NO Creative
Risk = Reputation; Relationship
Speed
Cost
35
Q

ADR Selection

Considerations

A 
WHO = Parties; 3P; Lawyers
WHAT = Legal Merits; Jurisdiction
HOW = Binding
WHEN = Speed; Costs
36
Q

ADR NOT Suitable

A

Case Strength = Issues; Merits
Complexity
Court Power = Injunction; Disclosure
Criminal Allegations

37
Q

ADR Contract Clause

WHAT

A

Dispute MUST Use ADR

38
Q

ADR Contract Clause

MUST

A

Clear AND Certain

Reasonable

39
Q

ADR Contract Clause

Breach

A

Sue for Damages

40
Q

ADR Contract Clause

Court Powers

A 
Stay Proceedings
Directions
Orders = Give Effect
Sanctions
Enforcement
Costs
41
Q

ADR Contract Clause

Court Factors

A

Compliance = Overriding; Pre-action
ADR Appropriate
ADR Cost

42
Q

PD Pre-action Conduct

WHY

A

Settle Dispute < Proceedings

Enable Case Management

43
Q

PD Pre-action Conduct

Parties MUST

A

Consider ADR

Exchange Information = Consider Position AND Informed Decision

44
Q

PD Pre-action Conduct

WHEN

A

Consider ALL Times

45
Q

PD Pre-action Conduct

STEPS Claimant

A

Letter Before Claim = Claim (Issues; Remedies); ADR Proposal

46
Q

PD Pre-action Conduct

STEPS Defendant

A

Letter of Response = Accept; Deny; Dispute (Whole; Part); ADR Proposal (Agree; Disagree; Reasons)

47
Q

Overriding Objective

Court MUST

A

Deal Cases
Justly
Proportionate Cost

48
Q

Active Case Management

WHAT Court

A

Encourage ADR
Decide Issues
Set Timetable

49
Q

Costs Management

WHAT Cases

A

Multi-track AND Fast-track Cases

50
Q

Costs Management

WHEN

A

Each Stage

51
Q

Costs Management

Party Duties

A

File = Costs Budget
Review
Revise = Application (Apparent Change; Reason)
Court Approve = Good Reason

52
Q

Costs Management

Court Orders

A

Approve = Pending Final Assessment
Refuse
Revise

53
Q

Costs Management

WHEN Final Assessment

A

Trial End

54
Q

Costs Management

Recovery Requirements

A

MUST Costs Budget
MUST Proportionate
TEST = Reasonable

55
Q

Overriding Objective

WHEN Party Consider = Stages

A

< Proceedings
> Proceedings
Track Allocation = Directions Questionnaire
Exchange = Information; Evidence; Witness; Expert

56
Q

Overriding Objective

Reject Proposal MUST

A

Witness Statement
Reason
Information
Serve < 21 days

57
Q

Overriding Objective

Court Powers

A

ADR Directions
Orders = Ungley; Stay Proceedings
NOT Compulsion = Art. 6 ECHR (Fair; Public; Independent)

58
Q

Stayed Proceedings

Court Powers AND Party Duties

A

Period = 1m PLUS 4w Extension
NO Action in Proceedings
Keep Court Informed

59
Q

ADR Sanctions

WHEN

A 
NOT Consider = ADR OR Proposal
NOT Accept = Reasonable Offer
NOT Attempt = Settle
NON Compliance = Pre-action Protocols; Court
Court Power to Investigate
60
Q

ADR Sanctions

Court Orders

A

Stay Proceedings

Adverse Costs

61
Q

ADR Sanctions

WHAT Adverse Costs

A

PAY Indemnity Costs
Deprive = Costs; Interest
PAY = Costs; High Interest @ 10%

62
Q

ADR Sanctions

Costs Factors

A

Rule = Costs Follow Event
CPR Factors
Halsey Principles

63
Q

ADR Sanctions

CPR Factors

A

Compliance
ADR Proposals = Reasonable
Successful Case
Conduct

64
Q

ADR Sanctions

Halsey v Milton Keynes NHS

A 
Fact = Death Caused by Nasal Feeding
Held = NO Costs
Ratio = Reasonable ADR Refusal
Factors (6)
Nature of Case
Merits of Case
ADR Attempts
ADR Prospect of Success
ADR Costs
Prejudicial Delay
65
Q

Protected Communication

Legal Privilege

A

Between = Lawyer and Client

Dominant Purpose = Legal Advice

66
Q

Protected Communication

Without Prejudice

A 
Between = Parties; Agent
Purpose = Settle Dispute
67
Q

Without Prejudice

Reason

A

Encourage ADR
NOT Fear Negotiation
Offers AND Concessions
Change Position

68
Q

Without Prejudice

Exceptions

A 
‘Except for Costs’
Open Offers
Parties = Consent; Waive Privilege
Establish = Terms; Settlement Concluded
Court Set Aside (Agreement)
69
Q

Without Prejudice

‘Except for Costs’

A 
Prove = Reasonable Offer
WHEN = Adverse Costs Application
70
Q

Without Prejudice

Court Set Aside (Agreement)

A

Misrepresent
Fraud
Cloak = Threat; Blackmail

ADR (7 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions