2. Introduction to ADR Flashcards
Motivations for ADR?
Lower costs
Speed of settlement
Choice of forum
Control of process
Flexibility
Confidentiality
Preserving relationships
Risk management
(9) When is ADR not appropriate?
Need for precedent
Importance of court orders
Interim orders required
Evidential rules critical
Strong case perception
High complexity
High animosity
Power imbalance
Enforcement concerns
(4) Lawyer’s duties in ADR (CPR)?
Advise on ADR options
Explain penalties for refusal
Ensure pre-action compliance
Budget ADR costs
Court’s ADR powers?
Encourage ADR at case management
Order stays for ADR
Impose sanctions for refusal
Monitor ADR use
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Courts Power to order ADR from Churchill
Courts can order ADR if fair and cost-effective
Revises Halsey’s limits on compelling ADR
ADR success possible even with unwilling parties
ADR types?
Non-Adjudicative: Agreement-based (e.g., mediation)
Adjudicative: Decision by third-party (e.g., arbitration)
Adjudicative ADR types?
Arbitration
Expert determination
Adjudication
4 Non-Adjudicative ADR types?
Mediation
Negotiation
Conciliation
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Authority to settle for lawyers?
Lawyers need client instructions to finalise agreements.
Apparent authority can bind a client.
Exceeding authority risks agreements being enforced and claims against the lawyer.
Specify settlements are subject to client approval to protect both parties.
When is Directions Questionnaires filed
what must be included (3)
Court response
Filed before case allocation (Form N181 for fast/multi-track, N180 for small claims).
Parties confirm ADR options explained to clients and risks of refusal.
Option to request a one-month stay for settlement discussions.
Non-compliance with pre-action protocols must be explained.
Courts may direct ADR if reasons for refusal are weak.
What is the impact of silence in response to an ADR request?
Silence is generally deemed unreasonable (PGF II SA v OMFS Co 1 Ltd).
May result in costs penalties unless ADR was clearly inappropriate.
Respond promptly with reasons if refusing ADR.
Exceptions: Mistakes or ongoing use of another ADR process.
