A. Alternative Dispute Resolution Flashcards
1
Q
What is ADR?
A
Alternative Dispute Resolution
These are methods of resolving a claim other than using lititgation.
2
Q
A sol must discuss ADR with their client for two reasons…
A
- Preaction protocols require parties to seriously consider ADR (if appropriate- may not be if unless injunction sought or client is uncooperative). If ADR not used, then reason should be provided to the court or there may be financial sanctions.
- ADR should considered throughout the litigation process to reach settlement. Failure without reason = sanctions
3
Q
What if an attempt for ADR fails?
A
The client can consider pursuing litigation.
4
Q
Civil disputes up to £10,000 will…
A
have free mediation session integrated into the County Court process
5
Q
Give me the process for litigation
A
- Process governed by CPR
- Cases heard in CC or HC presided over judge
6
Q
Give me the 4 advantages for litigation
A
- Courts have wide ranging powers (e.g. damages, injunctions)
- Joinder of third parties (multi-party litigation)
- More predictable via common law precedent
- Appealed more easily (good for complex cases)
7
Q
Give me the 5 disadvantages for litigation
A
- Public record (people can see judgment)
- Time delay
- Costs (mainly for losing party)
- Enforcement not guaranteed (losing party may not have resources)
- Breakdown of commercial relationship
8
Q
How is litigation enforced?
A
- Court hands down judgement which losing party has to comply with
- Winning party can go to court to enforce judgement if losing party fails to comply
9
Q
What is the process of arbritation?
A
- decided by 1/more arbritators usually experts in field
- parties can agree in contracts to use arbritation in event of disagreement
- independent from the court
- conducted by hearings in arbriation hearingd presided over by arbritators
10
Q
Give me the 5 advantages of arbritation?
A
- Confidentiality
- Flexibility (choice of seat, procedure and arbritator and free to draft contract themselves
- enforceability (internationally enforceable via New York Convention)
- decisions can be commercially favourable not just based on law
- No appeal on question of fact and disapply any appeal on point of law
11
Q
Give me 4 disadvantages of arbritation
A
- Expensive and time consuming
- Requires parties to agree to arbritation
- not create precedents therefore uncertain
- harder to join third parties
11
Q
What is the enforcement for arbritation?
A
- Arbritator issues arbritation award
- Enforced by courts if not abided by
12
Q
Mediation process
A
- Neutral 3rd party discusses issue with parties
- meet in area with separate rooms to discuss with mediator
- mediator = go between to reach agreement
13
Q
6 advantages of mediation
A
- confidentiality
- speed and cost (better than hiring arbritators)
- control over procedure
- neutral location
- commercially sensible solution (agree on something parties happy with)
- preserves business relationship (no falling out in court)
14
Q
3 disadvantages of mediation
A
- not using expert so not suitable for complexities
- no guaranteed outcome = wasted costs and time delay
- requires cooperation
