1): Different Options for Dispute Resolution Flashcards
What is the aim of Alternative Dispute Resolution (ADR)?
litigation should be last resort
litigation requires that party consider use of ADR such as arbitration and mediation
ADR usually quicker and cheaper than litigation
an offer to engage in ADR should not be unreasonably refused (includes being silent on invitation to engage in ADR)
Can the court compel parties to engage in non-court ADR?
yes, following the decision in Churchill v Merthyr Tydfil Council [2023]
What are the factors to consider to justify refusal to consider ADR?
nature of the dispute
merits of the case
extent to which other settlement options have been attempted
if cost of ADR would be disproportionately high
if a delay in attending and arranging ADR would be prejudicial
if ADR would have a reasonable prospect of success
Who has the burden of proving that refusal of ADR is unreasonable?
the other party
What are the consequences of a finding of unreasonable refusal of ADR?
an adverse costs order which could include:
for a successful claimant: depriving them of being awarded their costs
order to pay some or all of the costs of the other party
order a higher rate of interest to be paid on damages
depriving a party of interest on damages
How is arbitration triggered?
pursuant to arbitration clause in contract
OR
parties agree to arbitration once a dispute has arisen
What happens once the parties agree to trigger arbitration?
arbitrator appointed
arbitrator hears both sides
decision made by arbitrator is binding on both parties (court judgment cannot be sought on the matter)
winning party can apply to court to for permission to enforce arbitration award
What are the pros and cons of arbitration?
pros:
more formal than mediation but less formal than litigation
quicker than going to court and confidentiality and business relationships can be preserved
Cons:
may not be appropriate if in-depth investigation/ ruling on point of law or injunction is required
not necessarily more cost-effective than litigation
disclosure limited so some info withheld
What happens when the parties want to engage in mediation?
appointment of mediator (indep. 3rd party) with aim to reach an agreed settlement
may or may not be binding
if not binding, parties can withdraw at anytime to return to court
What are the pros and cons of mediation?
pros:
no set format, confidential process, no formal rules for disclosure
less destructive of parties’ relationship
negotiated settlement can be more creative than legal remedy
cons:
not appropriate if ruling is required on a point of law or injunction is needed
What is litigation?
If ADR is not applicable, litigation is last resort
formal process of dispute resolution through the courts
trial with judgment given
CPR 1998 govern litigation
CPR divided into 89 parts (supported by practice directions)
parties must follow CPR or receive a sanction/penalty
judgments binding on parties (parties have right to apply for leave or permission to appeal)
In which court are civil claims brought?
County Court or High Court
What are the disclosure requirements in litigation?
disclosure requires parties to produce all available evidence that relates to the claim
failure to adhere to disclosure rules may result in evidence being excluded
What are the 5 main stages of the litigation process?
- pre-action conduct - parties must follow pre-action protocols and PDs on pre-action conduct prior to litigation commencing
- commencement of action and defending of proceedings - claimant will serve claim form and particulars of claim
defendant may file a defence
- case management by the court - court gives directions to each party with strict deadlines
- Trial - judge will hear all evidence and make decision as to liability, damages (quantum) and costs.
- Post-trial - losing party may appeal and winning party may enforce judgment if damages/legal costs not paid
