ADR Flashcards
What are the types of ADR?
- Negotiation
- Mediation
- Arbitration
- Med-arb
- Early neutral evaluation/expert appraisal/expert evaluation
- Expert determination
- Concilliation
Which types of ADR do not involve third parties?
Negotiation
Which types of ADR involve third parties but don’t result in a binding decision?
- Mediation
- Early neutral evaluation/expert appraisal/expert evaluation
- conciliation
Which types of ADR involve third parties and result in a binding decision?
- Arbitration
- Expert determination
Can the contents of mediation be presented in court?
No
Can the court hear a matter that has been arbitrated?
No
When will the question of arbitration arise?
- clause in contract or
- parties choose when dispute arises
What are the advantages of arbitration?
- easier enforcement
- privacy
- ability to choose specialist
- flexibility
What are the reasons for using ADR?
- Court expectation
- Better relationships
- Less expensive/saves time
- Privacy/confidentiality
- Less disruption
- Outcomes reflect risks
- Control
- Involvement
What are the various stages that the CPR may require ADR?
- PAP and practice direction on pre action conduct may require
- Costs budget
- Directions questionnaire
- case management conference
Can the courts generally compel parties to engage in ADR?
No
What is the most common way of judicial encouragement for ADR?
Costs
Who is the burden of proof on to show that the successful party in litigation unreasonably refused to engage in ADR?
Unsuccessful party
What are the circumstances that the court considers when deciding to impose costs penalty for refusal to engage in ADR?
- Nature of dispute/suitability of ADR
- Mertis of case
- Extent of other settlement methods
- Whether costs of ADR would be disproportionately high
- If delay in setting up/attending ADR would be prejudicial
- Reasonable prospect of success
Will the courts impose costs penalty for failure to suggest ADR?
NO
