6. Non-Adjudicative ADR Flashcards
What is Early Neutral Evaluation (ENE)?
ENE is a private, non-binding assessment and evaluation of the facts, evidence, and/or legal merits of the issues in a case. It is without prejudice and conducted by a neutral third party.
How does ENE differ from mediation?
ENE is an advisory and evaluative process where a neutral third party provides an evaluation of the dispute, whereas mediation is a facilitative process where the mediator helps parties negotiate a resolution.
At what stage should ENE be employed?
ENE is usually employed at an early stage of a dispute but can be utilized at any stage, including before or during mediation and at any time during litigation.
When is ENE particularly useful?
ENE is useful when:
- A party has taken an unrealistic view of the issues or case.
- The dispute relies more on legal or technical analysis rather than opposing factual evidence.
- To resolve disputes arising during cost assessments after main proceedings.
What is the procedure for ENE?
The ENE procedure involves:
- Flexibility: Evaluator sets the process in consultation with the parties.
- Preliminary meetings to establish ground rules and timelines.
- Written submissions and evidence provided by parties.
- Optional oral presentations by parties.
- Evaluator produces a recommendation based on the merits and likely outcome.
What is judicial evaluation?
Judicial evaluation is a form of ENE conducted by a judge in court. The judge evaluates the legal and factual issues, considers evidence and submissions, and provides a non-binding recommendation or provisional view.
What authority does the court have to order ENE?
Under CPR r3.1(2)(m), the court can order ENE without the consent of one or more parties.
What is conciliation?
Conciliation is a facilitative process involving a neutral third party who:
- Facilitates negotiations between the parties.
- May propose a decision if the parties cannot reach one.
- Operates on a confidential, without prejudice basis.
What disputes are suitable for mediation?
Mediation is suitable for disputes involving:
- Contract, tort, and consumer claims.
- Neighbourhood, housing, and family disputes.
- Regulatory and public sector disputes.
Mediation may not be appropriate for debt claims with no sustainable defence.
When is the best time for mediation?
Mediation can occur:
- At any stage up to trial or even pending appeal.
- Shortly after the exchange of statements or disclosure of documents.
- Parties can apply for a stay of proceedings to facilitate mediation.
How can a mediator persuade a reluctant party to consider mediation?
The mediator may:
- Act as a broker to encourage parties to participate.
- Highlight the potential cost savings and benefits of mediation.
- Explain the risks of adverse cost orders for unreasonably refusing mediation.
What is the role of the mediator during mediation?
The mediator:
- Chairs meetings, sets the agenda, and manages the process.
- Facilitates discussions in joint and private meetings.
- Assists parties in negotiating more effectively by gathering information, reframing confrontational communication, and acting as a reality-checker.
- Conveys offers and counter-offers between parties during private meetings.
What ethical conduct is required of a mediator?
A mediator must demonstrate:
- Competence, independence, neutrality, and impartiality.
- Confidentiality and fairness in the process.
- The ability to terminate mediation if a settlement is unenforceable, illegal, or unlikely.
What is the confidentiality rule in mediation?
2 exceptions
Mediation agreements typically prohibit disclosure of the process without mutual consent. Confidentiality may be overridden in certain circumstances, such as:
- Court orders in the interests of justice.
- Preventing harm, crime, or legal non-compliance.
What is the without prejudice rule in mediation?
3 exceptions
This rule protects communications made for settlement purposes during mediation. Exceptions include:
- Fraud or misrepresentation claims.
- Determining whether a settlement was concluded.
- Documents required by standard disclosure in litigation.
What factors influence the selection of attendees for mediation?
Factors include:
- Who has direct knowledge of the key issues.
- Who is most affected by the dispute.
- Who has technical expertise or authority to settle the dispute.
(3) What is included in a position statement for mediation?
Position statements outline the party’s case and may include:
- Statements of case or detailed letters of claim.
- Witness statements and expert reports.
- Relevant key documents and offers made during litigation.
Can a mediator rely on the without prejudice rule?
No, the without prejudice rule exists for the benefit of the parties, not the mediator.
(4) What are the key stages of mediation?
The stages of mediation include:
- Preliminary introductions, where the mediator meets each party and addresses concerns.
- Signing the agreement to mediate.
- a mix of both joint and private meetings to facilitate discussions and negotiations
- Private meetings where the mediator facilitates discussions and negotiations.
- Drafting and signing the final settlement agreement if an agreement is reached.
