1. Methods of Dispute Resolution

Question 1

When can negotiation happen?

Answer 1

At any time in a case, pre or post-litigation

Question 2

What does the fact negotiations are without prejudice mean?

Answer 2

Conversations cannot be relied on by parties or referred to in courts

Question 3

Can a court order parties to consider alternative dispute resolution?

Answer 3

No

Question 4

If a party considers ADR inappropriate, but does not set out their reasons, what can the court do?

Answer 4

Penalise the party in respect of legal costs that they can recover, or an order making them pay costs incurred by the other side as a result of the conduct

This applies to failure to follow Civ Pro rules generally

Question 5

If a party refuses to consider ADR, can the court force them to undergo ADR?

Answer 5

No, but it may penalise them. If the party wins the claim, and the Judge believes that the claim could have been resolved during ADR, the winning party may have to pay the losing parties costs from the date which they refused to participate in ADR/ the losing party may be absolved from paying the winning party’s costs from date of ADR refusal

Question 6

If a contract between two parties has an ADR clause, what will the courts do if one of the parties issues proceedings first?

Answer 6

The court will stay the proceedings- halt the proceedings

Question 7

What is mediation?

Answer 7

Informal, confidential, and voluntary process in which a neutral third party assists the parties in reaching their own resolution

Question 8

What are the three key features of mediation?

Answer 8

1. Parties can walk away at any time
2. Strict rules of evidence do not apply
3. Mediation is non-binding until final written agreement is signed
4. Mediator does not come to come to decision themselves- they simply help guide the parties to make a decision

Question 9

Can arbitration happen alongside litigation?

Answer 9

No-arbitration must take place separately. But mediation and negotiation can occur during litigation