11 - ADR & Arbitration

Question 1

ADR

Answer 1

Alternative Dispute Resolution

Question 2

How does the court process provide incentives to mediate?

Answer 2

• requires consideration of ADR at pre-action stages
• ADR consideration required as an ongoing option
• consider ADR is part of DQ
• consider ADR is part of costs management

Question 3

Which ADR processes do NOT use a third party?

Answer 3

Negotiation

Question 4

Which ADR processes use a NON-BINDING third party?

Answer 4

Mediation
Early Neutral Evaluation
Expert appraisal

Question 5

Which ADR processes use a BINDING third party?

Answer 5

Expert determination

Med-arb/escalation clause

Question 6

Mediation, Arbitration, Litigation: which has a binding decision?

Answer 6

Arbitration

Litigation

Question 7

Mediation

Answer 7

Impartial mediator reaches a non-binding decision

Question 8

What should a mediator consider?

Answer 8

WATNA = worst day at court (claim lost, no damages, pay costs on an indemnity basis)

MEDIATION (middle)

BATNA = best day at court (win claim, full damages, awarded costs on indemnity basis)

Question 9

Arbitration

Answer 9

quasi-judicial private contractual procedure where an impartial third party reaches a binding decision

Question 10

When are parties obligated to arbitrate?

Answer 10

arbitration clause/agreement in writing

Question 11

What is institutional arbitration?

Answer 11

parties select an arbitral institution to support the process - supervises conduct, applies own rules and procedures