ADR Flashcards
CPR r1.4(2)(e)
The court has a duty to encourage ADR as a method of dispute resolution
What is the starting premise of ADR?
That it must be a voluntary process and therefore must be consented to by the parties to a dispute
Is mediation binding?
No, unless and until a final written agreement has been signed by the parties
How does the mediator mediate?
They shuttle between the parties exploring their positions and bringing them together as and when appropriate, by which they help the parties to break through their deadlock and find a common ground
What’s the difference between conciliation and mediation?
The concilliator is more proactive than the mediator and will usually suggest their own solutions
How does early neutral evaluation work?
A third party - usually an independent legal representative or a judge - considers the issues and advises on the likely outcome
How does judicial/expert determination work?
The parties jointly instruct and make written submissions to a senior judge/QC who then makes a written appraisal (can be binding if the parties agree beforehand)
The decision in arbitration is-
Known as a final award and is binding
Key benefits of ADR (6)
Speed, flexibility, cost, consensus, confidentiality and settlement
Reed Executive v Reed Business Information 2004
The court will have access to offers to mediate in correspondence marked WPSATC when considering costs orders at the conclusion of a trial
A losing party who refuses to mediate despite court recommendation-
Will be penalised in costs
Relevant factors to consider whether there has been an unreasonable refusal to mediate (7)
The nature of the dispute; the merits of the case; the extent to which other settlement methods have been attempted; whether the costs of ADR would be disproportionately high; whether any delay in setting up ADR would have been prejudicial to the trial date; whether ADR had a reasonable prospects of success; where a successful party refused to agree to ADR despite court encouragement
PGF II SA v OMFS CO 1 Ltd 2013 (4)
Silence in the face of an invitation to participate in ADR unreasonable; this does not produce an automatic result in terms of a costs penalty; it is possible that the court might go further and order the otherwise successful party to pay all or part of the unsuccessful party’s costs; such sanction should be reserved for only the most serious failures to engage
CPR r26.4
The court may impose a stay of proceedings for the purpose of engaging in ADR
Types of ADR
Negotiation; mediation; conciliation; ENE; judicial/expert determination; arbitration
