ADR Flashcards
What is an ADR clause?
A clause in a contract by which the parties agree to resolve their dispute primarily by ADR methods.
ADR stands for Alternative Dispute Resolution and includes methods like mediation and arbitration.
What may an ADR clause specify?
It may define a particular ADR method or specify several methods that must be exhausted before litigation.
Common methods include mediation, arbitration, and expert determination.
What is the court’s power regarding ADR agreements?
The court has an inherent discretionary power to stay proceedings brought in breach of the ADR agreement.
This means the court can pause litigation to enforce the agreed ADR process.
What must ADR clauses be to be enforceable?
The contractual procedure must be clear and unambiguous.
Ambiguity may lead to the court declining to enforce the clause.
True or False: Courts have enforced mere agreements to negotiate in good faith.
False
Courts have historically not enforced such agreements due to lack of certainty.
What did the court uphold in the ADR clause regarding friendly discussion?
The clause required parties to resolve disputes by friendly discussion in good faith before arbitration.
This highlights the court’s willingness to enforce good faith obligations.
What is necessary for the court to grant a stay of proceedings?
The procedure envisaged by the contract must be sufficiently certain to be enforceable.
This means the ADR process must be clearly defined.
What was the outcome in Sulamerica CIA Nacional de Seguros SA v Enesa Engenharia SA regarding the ADR clause?
The court refused to uphold the ADR clause due to lack of a clear mediation commitment.
The absence of a defined mediation process led to non-enforceability.
What criteria did the court establish in Wah v Grant Thornton International Ltd for enforcing an ADR clause?
- A sufficiently certain commitment to commence a process
- Steps required by each party to initiate the process
- A clearly defined process for objective determination
These criteria help ensure that the ADR process is actionable.
What type of damages may be awarded for breach of an ADR clause?
Damages may consist of costs incurred due to proceedings brought in breach of the ADR clause.
These costs cannot be recovered if they could have been sought in the initial proceedings.
What is CADR?
Costs Alternative Dispute Resolution, a panel set up in 2015 to resolve disputes about costs.
CADR uses various ADR processes for cost disputes.
What methods does CADR use to resolve cost disputes?
It includes non-binding or binding paper assessments at remote hearings or based on submitted papers.
This serves as an alternative to court assessments of costs.
What does ADR stand for?
Alternative Dispute Resolution
What is the nature of the agreement to use ADR?
The use of ADR is essentially contractual
What are the two main categories of ADR options?
- Adjudicative Options
- Non-Adjudicative Options
True or False: ADR can be used without the agreement of the parties involved.
False
What role does a lawyer play in ADR?
Advising on ADR options and criteria
What is a key characteristic of adjudicative ADR?
An independent third party reaches an impartial decision
How does adjudicative ADR differ from litigation?
It provides more flexibility and privacy
What must parties agree upon in an adjudicative process?
- The form of the process
- The person or body to carry out the process
- Other details as chosen by the parties
What is arbitration?
A process conducted by one or more arbitrators who reach a decision based on submissions from the parties
What act regulates arbitration in England and Wales?
The Arbitration Act 1996
List some attractions of arbitration.
- Selection of an arbitrator with expertise
- Privacy of the process
- Tailoring of the process to specific needs
- Control over submitted material
- Structured process options
- Cost-effectiveness with written submissions
What are some potential drawbacks of arbitration?
- Not necessarily cost-saving
- Binding third-party decision
- Limited powers to deal with uncooperative parties
- Need for careful selection of arbitrator
What does adjudication involve?
A neutral third party reaching a decision on a dispute under an agreed process
In what contexts is adjudication most likely appropriate?
Specialist commercial fields
What are the key elements of an adjudication process?
- Agreed process
- Binding form
- Industry-adapted procedures
What are the benefits of adjudication?
- Flexibility
- Cost-effectiveness
What is expert determination?
A process where an expert makes a binding decision on issues requiring specialized knowledge
What are the advantages of using expert determination?
- Time and cost savings
- Flexibility
Fill in the blank: The details of the agreement to use ADR are often _______.
[adaptable to meet the needs of an individual case]
True or False: Adjudication is always low cost.
False
What must be agreed in writing at the start of the expert determination process?
The process and matters to be considered
