ADR Flashcards
Describe the process of negotiation in ADR.
Negotiation is a communication process between parties aimed at reaching a compromise or agreement that satisfies both parties.
When can parties decide to arbitrate a dispute?
Parties can decide to arbitrate either when negotiating a contract by including an arbitration clause or after a dispute has arisen, even without a prior arbitration agreement.
Define mediation in the context of ADR.
Mediation is a confidential process that facilitates the resolution of disputes through an impartial third party, known as the mediator.
How does a mediator assist in the mediation process?
The mediator moves between the parties’ rooms, delivering settlement offers and guiding each party to reflect on those offers and alternatives to reach an agreement.
What authority does a mediator have during mediation?
The mediator has no authority to make binding decisions on the parties involved.
What happens if mediation does not result in an agreement?
If mediation does not end in an agreed resolution, the content of the mediation remains confidential and is not disclosed to the court.
Describe the process of arbitration.
Arbitration is a process by which a dispute is resolved by an impartial adjudicator whose decision is agreed to be final and binding by the parties involved.
How does arbitration affect the jurisdiction of courts?
By agreeing to arbitrate disputes, parties are ousting the jurisdiction of the court to hear the matter and giving jurisdiction to an impartial adjudicator instead.
What are some advantages of choosing arbitration?
Advantages of arbitration include privacy, easier enforcement in certain jurisdictions, the ability to choose a specialist adjudicator, and additional flexibility to adapt the process to the needs of the parties.
What happens if mediation in the med-arb process is unsuccessful?
If mediation is unsuccessful, the dispute moves on to arbitration, where a binding decision is made.
Define early neutral evaluation.
Early neutral evaluation is a process where an independent party provides a non-binding assessment of a dispute to help influence future settlement discussions.
What types of professionals can serve as independent parties in early neutral evaluation?
Independent parties can be lawyers or experts in relevant fields, such as medical or engineering experts.
How does expert determination differ from expert appraisal?
Expert determination provides a binding decision, while expert appraisal only offers an opinion without binding authority.
When might expert determination not be suitable?
Expert determination may not be suitable in cases where parties wish to be fully heard or when there are significant issues of credibility.
Describe the role of a conciliator in the conciliation process.
A conciliator is an independent neutral third party who helps parties resolve their dispute, often facilitating discussions and sometimes providing evaluations.
How does conciliation differ from mediation?
Conciliation may involve more evaluation and is often part of a statutory or regulatory scheme, while mediation is typically more flexible and determined by the parties involved.
Define negotiation in the context of ADR.
Negotiation is a process where parties communicate directly to reach a mutually acceptable agreement without third-party involvement.
What is early neutral evaluation in ADR?
Early neutral evaluation is a process where an expert assesses the strengths and weaknesses of each party’s case early in the dispute, providing a non-binding opinion.
Describe the potential advantages of using ADR.
The potential advantages of using ADR include privacy and confidentiality, time savings, lower costs, improved relationships, alignment with court expectations, a range of outcomes, outcomes that reflect risk, control for the parties involved, increased party involvement, and less disruption.
How does ADR contribute to better relationships between parties?
ADR can contribute to better relationships by fostering communication and collaboration, allowing parties to work together towards a mutually agreeable solution rather than engaging in adversarial litigation.
Describe the level of privacy in litigation compared to alternative dispute resolution (ADR).
Litigation involves filing documents at court that may be accessible to the public, and hearings are generally public, whereas forms of ADR are private and confidential.
Define the concept of risk reflection in non-binding ADR settlements.
Risk reflection in non-binding ADR settlements involves parties agreeing on a settlement amount that corresponds to the likelihood of winning or losing a claim, allowing for a more flexible resolution compared to formal court judgments.
What is an example of a risk-based settlement in a financial claim?
An example of a risk-based settlement in a financial claim is when a claimant with a 60% chance of winning agrees to receive £60,000 from the defendant instead of the full £100,000, acknowledging the risk of losing the case.
Define the role of third parties in ADR.
In ADR, parties can choose third parties such as arbitrators or mediators, giving them more control over the dispute resolution process.
Explain why clients might prefer mediation over litigation.
Clients might prefer mediation due to the increased opportunity for involvement and expression during the process, contrasting with the more alienating nature of litigation.
What is a common requirement in commercial contracts regarding ADR?
Many commercial contracts require parties to engage in ADR before starting court proceedings.
Define the potential downside of engaging in ADR too early.
If a party engages in ADR too early, it may incur costs when the dispute is not genuine and would not have been pursued anyway.
How do pre-action protocols influence the consideration of ADR?
Pre-action protocols and the practice direction on pre-action conduct require parties to consider ADR before proceeding with litigation.
Explain the role of Directions Questionnaires in ADR considerations.
Directions Questionnaires require legal representatives to confirm they have explained settlement options to clients and may include a request for a stay to facilitate settlement.
At what stage can the court stay proceedings in relation to ADR?
The court has the power to stay proceedings at any stage, including after Directions Questionnaires.
What does the court seek to know during a case management conference regarding ADR?
The court is likely to inquire about the steps the parties have taken to explore alternative dispute resolution.
Describe how the court encourages parties to engage in Alternative Dispute Resolution (ADR).
The court encourages parties to engage in ADR by providing information about ADR and encouraging them to consider and participate in it.
What is the court’s limitation regarding compelling parties to engage in ADR?
The court cannot generally compel a party to engage in ADR.
What role does Alternative Dispute Resolution (ADR) play in the court’s decision on costs?
The court can encourage parties to engage in ADR by rewarding positive ADR behavior and punishing poor behavior in costs.
What happens if a successful party refuses to engage in ADR?
If a successful party refuses to engage in ADR, the court will assess whether that refusal was reasonable and may impose a costs penalty if it was not.
How does the court view a party’s failure to suggest ADR?
The court does not penalize a party for simply failing to suggest ADR and will not refuse to award costs to a successful party for this reason.
What is the likely outcome of remaining silent in response to an ADR offer?
Silence in the face of an ADR offer is likely to be considered unreasonable and may result in sanctions regarding costs, unless the parties are already engaged in ADR.
How does the court ensure parties consider ADR?
The court can direct parties to consider ADR and require them to provide explanations of their reasoning regarding ADR.
What happens if a party does not engage in proposed ADR means?
If a party does not engage in proposed ADR means, they must serve a witness statement within 21 days explaining their reasons, which will not be shown to the trial judge until cost questions arise.
