ADR: General Flashcards
What is the difference between adjudicative ADR and non-adjudicative ADR? Give examples of each
Adjudicative = Involves a biding decision on the case being made by an independent third party
Examples: Arbitration, expert/Neutral Determination
Non-Adjudicative = No decision or outcome is imposed on the parties, binding decision made by the parties themselves
Examples: Mediation, Early Neutral Evaluation, Conciliation, Joint Settlement meetings
Give some example of the factor be be taken into account when advising a client about appropriate forms of ADR
Need to preserve future relationship
What’s the key object — financial (any ADR method), non-financial (non-adjudicative more suitable)
Quick resolution
Control of process
Entrenched positions
Expert opinion needed?
Minimising costs
List some potential advantages of ADR
Lower cost (if settlement reached)
Quicker
More choice as to process and forum
Wider range of issues and outcomes can be considered
Flexibility
Confidentiality
Problem solving approach
Less formal
Potential disadvantages of ADR
Increased expense, if no settlement reached
Additional delay, not appropriate is urgent outcome need
Potential loss of strategic use of process/evidence
Possible issues as to equality of arms
give examples of where ADR may not be appropriate
If a precedent is needed
If a court order is needed i.e injunction
If evidence is needed, need court backing for disclosure
Too much animosity
Inequality of arms
Too complex legal issues
Very serious allegations
What is the best time to consider ADR?
Need to identify a happy medium between details being clear but before costs have been incurred to the point that settle the is no longer possible
What are some advantages of early use of ADR?
What are some potential drawback of using ADR too early?
Pragmatic approach to dispute from start may avoid entrenchment,
Even if settlement is not reached at early stage, may assist in clarifying and narrowing issues which will Dave time and expense later on
Drawbacks:
Difficult to evaluate merits/value of case too early on
Process may be being used tactically rather Thant genuine attempt to settle
Waste of time and money is unsuccessful
Risks exacerbating dispute and leading to greater entrenchment
What MAY be seen as justification for non-compliance with need to consider ADR in pre-action stage
How is silence considered?
When is the first main opportunity the court has to consider ADR?
If limitation period about to expire (but can apply for a stay to pursue ADR once claim is issued) or if urgent action is needed (i.e injunction)
Silence = unreasonable behaviour
Allocation stage, through directions Questionnaire
What will have to be confirmed in the directions Questionnaire?
What can be requested within the questionnaire?
Legal representatives will be asked to condition that ADR and potential costs sanctions have been explained to client
Parties can request 1 month stay for ADR
What is an Ungley order?
What can the court do if ADR is being held up by non-disclosure of a key document?
Directions robustly emphasising the use of ADR
Court can make an order for limited disclosure to support the use of ADR
Can the court compel the parties to use ADR?
Court can DIRECT parties to consider ADR and make an order to that effect to facilitate the use of ADR
But courts are not prepared to compel parties to use ADR if they are unwilling to do so.
What has held in Halsey?
CofA held that the general rule that costs follow the event should not be departed from unless it is shown that the successful party acted UNREASONABLY in refusing to agree to ADR
In deciding if a refusal to consider ADR was unreasonable the court will consumer all the circumstances of the case, including (list of factors)
The UNSUCCESSFUL party bears the burden of proving this
What were the factors established in Halsey that the court will consider when assess if a refusal to consider ADR was unreasonable?
Are these factors exhaustive?
A. Nature of the dispute
B. Merits of the case
C. Extent to which other settle the methods have been attempted
D. Whether costs fo ADR would be disproportionately high
E. Whether any delay in setting up and attending ADR would be prejudicial
F. Whether ADR had a reasonable prospect of success
G. Whether an ADR order was made by the court
Not Exhaustive, court will still need to consider all of the facts and circumstances
What examples does Jackson give for where court may not penalise a party refusing to agree to ADR?
If relationship is so broken down that it is not realistic to mediate
If a party is incapable of a balanced evaluation of the facts
If a party has a strong case and will no accept low/nuisance payments
What should you advices you client to do to avoid sanction:
Do not _____ an offer to engage in ADR
Courts will view ____ in the face of an invitation to participate in ADR as an _____________ refusal
Should realise any real concern or obstacles to ADR _________ in the proceedings rather than ________
Write correspondence with ____. Do not give the impression of ________exploration of ______ at a later date
If the court has positively supported and directed the use of ADR, a refusal is likely to be seen as ___________
Do not IGNORE an offer to engage in ADR
Courts will view SILENCE in the face of an invitation to participate in ADR as an UNREASONABLE refusal
Should realise any real concern or obstacles to ADR EARLY ON in the proceedings rather than LATER ON
Write correspondence with CARE. Do not give the impression of CLOSING OFF exploration of ADR at a later date
If the court has positively supported and directed the use of ADR, a refusal is likely to be seen as UNREASONABLE
