01 - Overview ADR Flashcards
ADR
Advantages
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
ADR
Disadvantages
Expectation
Non Disclosure
Delay = Time; Litigation; Pre-action (Injunction; Disclosure)
Cost = ADD Litigation
NON Adjudicative
WHAT
Informal = Explore Options
Non Binding = Decision; Settlement
Parties Approve Settlement
NON Adjudicative
TYPES
Offers to Settle
Negotiation
Mediation
Early Neutral Evaluation
Adjudicative
WHAT
Formal Procedure
Binding = Decision; Settlement
Limited = Challenge; Appeal
Adjudicative Options
TYPES
Expert Determination
Adjudication
Arbitration
Offers to Settle
TYPES
Open
Without Prejudice
Part 36
Part 36
Defendant NOT Accept
Defendant PAY = Costs; Interest @ 10% Additional Damages 10% < £500k 5% £500k < > 1m Total = £75k
Part 36
Claimant Accept
Defendant PAY Costs < Date of Acceptance
Part 36
Claimant NOT Accept
Defendant PAY Costs < Date of Acceptance
Claimant PAY Costs > Date of Acceptance
Negotiation
WHO
Lawyers = Representative
Negotiation
Settlement Agreement
Enforceable Contract
Negotiation
Advantage
Reality = Entrenched View; Strength; Weakness
Issues = Non Legal
Creative = Settlement
Non Binding = Starting Point; Accept OR Reject
Negotiation
Disadvantages
Preparation
Strategy OR Tactics = Strong; Weak
NO Result
Mediation
WHO
Mediator = Neutral Lawyers = Representative
Mediation
Settlement Agreement
Memorandum of Agreed Terms
Enforceable Contract
Mediation
Advantages
Reality = Entrenched View; Strength; Weakness
Issues = Non Legal
Creative = Settlement
Non Binding = Starting Point; Accept OR Reject
Mediation
Disadvantages
Preparation
Strategy OR Tactics = Strong; Weak
Mediator = SKE
NO Result
Early Neutral Evaluation
WHO
Evaluator = Neutral / Expertise
Early Neutral Evaluation
WHEN
Contract Clause = Dispute MUST Evaluation
Request
Early Neutral Evaluation
Advantages
Technical Issues
MAY Offer = Without Prejudice; Part 36
MAY Assist = Mediation; Negotiation
Early Neutral Evaluation
Disadvantages
Preparation
Evaluator = SKE
NO Result
NOT Facilitative
Expert Determination
WHO
Expert
Specialist Field = Accountant; Engineer
Expert Determination
Advantages
Contract Clause
Technical Dispute
Expert Determination
Disadvantages
NO Control = Decision; Reason
NO Creative
Binding
Limit = Challenge
Adjudication
WHO
Adjudicator
Specialist Field = Accountant; Engineer
Arbitration
WHO
Tribunal = Independent; MAY Expertise
Arbitration
Advantages
Contract Clause
Industry Process
Developed Procedure
Arbitration
Disadvantages
NO Control = Decision; Reason
NO Creative
Binding
Limit = Challenge; Appeal
Hybrid Processes
WHAT Mediation > Arbitration
Binding Decision IF NO Settlement
Hybrid Processes
Advantages
Mediation Window
MUST Dispute Resolution
Enforceable Contract
Cost Effective
Hybrid Processes
Disadvantages
Non Disclosure
Arbitrator = Mediator
Confidential Information
Litigation
Advantages
MUST Consider ADR
Developed Procedure = Clear
Court Power = Directions; Orders; Sanctions
Enforce Decision
Litigation
Disadvantages
Adversarial Complex = CPR; Evidence NO Control = Decision; Reason NO Creative Risk = Reputation; Relationship Speed Cost
ADR Selection
Considerations
WHO = Parties; 3P; Lawyers WHAT = Legal Merits; Jurisdiction HOW = Binding WHEN = Speed; Costs
ADR NOT Suitable
Case Strength = Issues; Merits
Complexity
Court Power = Injunction; Disclosure
Criminal Allegations
ADR Contract Clause
WHAT
Dispute MUST Use ADR
ADR Contract Clause
MUST
Clear AND Certain
Reasonable
ADR Contract Clause
Breach
Sue for Damages
ADR Contract Clause
Court Powers
Stay Proceedings Directions Orders = Give Effect Sanctions Enforcement Costs
ADR Contract Clause
Court Factors
Compliance = Overriding; Pre-action
ADR Appropriate
ADR Cost
PD Pre-action Conduct
WHY
Settle Dispute < Proceedings
Enable Case Management
PD Pre-action Conduct
Parties MUST
Consider ADR
Exchange Information = Consider Position AND Informed Decision
PD Pre-action Conduct
WHEN
Consider ALL Times
PD Pre-action Conduct
STEPS Claimant
Letter Before Claim = Claim (Issues; Remedies); ADR Proposal
PD Pre-action Conduct
STEPS Defendant
Letter of Response = Accept; Deny; Dispute (Whole; Part); ADR Proposal (Agree; Disagree; Reasons)
Overriding Objective
Court MUST
Deal Cases
Justly
Proportionate Cost
Active Case Management
WHAT Court
Encourage ADR
Decide Issues
Set Timetable
Costs Management
WHAT Cases
Multi-track AND Fast-track Cases
Costs Management
WHEN
Each Stage
Costs Management
Party Duties
File = Costs Budget
Review
Revise = Application (Apparent Change; Reason)
Court Approve = Good Reason
Costs Management
Court Orders
Approve = Pending Final Assessment
Refuse
Revise
Costs Management
WHEN Final Assessment
Trial End
Costs Management
Recovery Requirements
MUST Costs Budget
MUST Proportionate
TEST = Reasonable
Overriding Objective
WHEN Party Consider = Stages
< Proceedings
> Proceedings
Track Allocation = Directions Questionnaire
Exchange = Information; Evidence; Witness; Expert
Overriding Objective
Reject Proposal MUST
Witness Statement
Reason
Information
Serve < 21 days
Overriding Objective
Court Powers
ADR Directions
Orders = Ungley; Stay Proceedings
NOT Compulsion = Art. 6 ECHR (Fair; Public; Independent)
Stayed Proceedings
Court Powers AND Party Duties
Period = 1m PLUS 4w Extension
NO Action in Proceedings
Keep Court Informed
ADR Sanctions
WHEN
NOT Consider = ADR OR Proposal NOT Accept = Reasonable Offer NOT Attempt = Settle NON Compliance = Pre-action Protocols; Court Court Power to Investigate
ADR Sanctions
Court Orders
Stay Proceedings
Adverse Costs
ADR Sanctions
WHAT Adverse Costs
PAY Indemnity Costs
Deprive = Costs; Interest
PAY = Costs; High Interest @ 10%
ADR Sanctions
Costs Factors
Rule = Costs Follow Event
CPR Factors
Halsey Principles
ADR Sanctions
CPR Factors
Compliance
ADR Proposals = Reasonable
Successful Case
Conduct
ADR Sanctions
Halsey v Milton Keynes NHS
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
Protected Communication
Legal Privilege
Between = Lawyer and Client
Dominant Purpose = Legal Advice
Protected Communication
Without Prejudice
Between = Parties; Agent Purpose = Settle Dispute
Without Prejudice
Reason
Encourage ADR
NOT Fear Negotiation
Offers AND Concessions
Change Position
Without Prejudice
Exceptions
‘Except for Costs’ Open Offers Parties = Consent; Waive Privilege Establish = Terms; Settlement Concluded Court Set Aside (Agreement)
Without Prejudice
‘Except for Costs’
Prove = Reasonable Offer WHEN = Adverse Costs Application
Without Prejudice
Court Set Aside (Agreement)
Misrepresent
Fraud
Cloak = Threat; Blackmail
