Alternate Dispute Resolution Flashcards
What does the Overriding Objective state when it comes to use of ADR?
CPR 1.4(e)
It states that the court must encourage the parties to use ADR.
Is ADR compulsory?
No, in the sense that it cannot be forced but only encouraged by the court. They court may impose sanctions where ADR is not reasonably refused.
The only form of ADR which is Compulsory is early neutral evaluation
What are the motivations for the use of ADR?
- lower costs
- speed of settlement
- choice of forum
- control of the process
- flexibility of the process
- confidentiality
- wider range of issues and outcomes can be considered
- shared future interests may be protected
- use of problem-solving approach
- risk management
How ADR lowers costs
There isn’t the use of the judicial process which is expensive
Works if ADR is used at a relatively early stage, the advantage decreases the further the case goes into litigation
Is is potentially expensive if it fails
A cost benefit analysis may be used in order to select whether or not ADR should be used and which form of ADR should be used
How ADR helps the speed of settlement
Non-Adjudicative ADR or ED can take place very quickly
This helps the personal benefits too
Choice of forum of ADR
Parties have a wide choice in the mediator or arbitrator etc. it can help if parties wish to have an individual who is specialist in their field. Can also be the fact that they both choose someone they equally respect.
Control of process - ADR
Parties can agree to processes which suits their dispute.
Flexibility of process - ADR
As litigation involves standard stages, ADR does not do this in a lot of the non-adjudication processes., negotiation and mediation are very flexible. The processes can vary for that particular dispute. Can be used to deal with issues which are not strictly legal
Confidentiality - ADR
As court hearings are public, ADR is not.
It is protected with the without prejudice principle
Not done in open hearings, they are private
Could be important for commercial or personal interests
Wider range of issues to be resolved - ADR
Complex issues can be dealt with, even those which are not pertinent to the dispute in the first place.
Court processes and statements of case can restrict what can be resolved, but ADR like mediation can consider issues outside of the dispute and be dealt with alongside the issues at hand.
Shared future interests protected - ADR
ADR allows prospective issues to be dealt with as well as those issues which have happened. The court process is rather reactive in nature.
ADR preserves relationships
Use of problem solving approach - ADR
ADR is more sontructive and use a range of techniques which means parties can get to the root causes of the disputes.
Court process is very entrenched in nature
Risk management - ADR
Risk may be more directly and cost effectively controlled through constructive and proactive use of ADR
What is the criteria for selection of ADR?
- the importance to minimise costs
- importance of a fast solution
- how much control a party wants
- the main objectives of the party
- importance of future relationship
- importance of an expert to key issues
- is neutral assistance important
When ADR may not be appropriate
- the need for a precedent
- importance of a court order
- relevance of interim orders
- evidential rules are important
- strength of the case
- complexity of the case
- high levels of animosity
- power imbalance
- quasi-criminal allegations
- having a day in court
- enforcement may be an issue
Role of a lawyer in advising ADR
- ensure client is sufficiently aware of ADR
- providing an objective evaluation of ADR options
- advising client on pre-action obligations in relation to ADR
- advising client on obligation in relation to the overriding objective in terms of ADR
- ensure client is aware of the penalties of refusing ADR
- giving proper advice on funding the ADR
- if ADR is selected, advise on the best form
- identify the objective reasons for the client to refuse ADR
- assisting the selection of an independent third party, if needed
- advising which forms of ADR in terms of the strengths of the case
- consider and advise on adjudicative and non-adjudicative ADR
- advise on drafting the terms of settlement
What is authority to settle?
- where a lawyer is given the permission by the client to reach a specific settlement
- it must be done through very clear instructions and within the parameters set by the client
- lawyers who exceed their permission, will be found to have committed a misconduct
Key case to identify where the refusal of ADR is unreasonable/reasonable
Halsey v Milton Keynes General NHS Trust
What order can the courts give to encourage ADR
Ungley Order. This was highlighted in Mann v Mann
What form of penalty may be used if ADR is unreasonably refused by a party
Penalty may be in a form of costs
When can the court encourage the use of ADR?
- pre-trial review
- case management
Direction questionnaire and ADR
Direction questionnaires, when allocating the claim to the right track, must contain the confirmation that the legal representatives have confirmed the many options available to the client of how to settle the claim.
The forms also asks if the client wishes a stay in proceedings to settle the claim.
The court does not have to agree to the decisions made in the DQ. It can order a case management to offer different ways to settle the claim.
Staying proceedings for ADR
The court may stay proceedings for the parties to attempt ADR
This will last for a month but can be longer in the decision of the court
Parties must update the court as to the result of the ADR that has taken place
Parties can go to the court for a consent or Tomlinson order if settlement has been reached
If settlement has not been reached, then the proceedings will resume after the stay
What are the Halsey principles?
If the winning party has unreasonably refused to agree to ADR, then the unsuccessful party has to prove the following in order to detract from the general rule of the unsuccessful party bearing the full costs.
The factors to be taken into consideration are:
- the nature of the dispute
- the merits of the case
- the extent to which the settlement methods have been attempted
- whether the costs of ADR are disproportionately high
- whether any delay in setting up and attending ADR would have been prejudicial
- whether the ADR process had a reasonable prospect of success
Halsey principles - the nature of the dispute
Whether the dispute was suitable for ADR or not
If it is not suitable for ADR to be used in this dispute, then it is not unreasonable to refuse it.
Technical cases which require a specialist court will not be unreasonable to refuse ADR
Halsey Principles - Merits of the case
The party has to reasonably believe that the merits of the case are of such that they will succeed
Halsey Principles - Extent to which others settlements have been attempted
Where other offers to settle have been made and rejected are also relevant. Even if it is the unsuccessful party or the successful party.
It is to bear in mind that mediation is often used where other forms of ADR have been unsuccessful
Halsey Principles - whether the costs of ADR are unreasonably high
Where the costs of mediation, for example, would cost more than the day in court.
Halsey Principles - Whether delay in setting up and attending ADR would be prejudicial
Where ADR has been suggested at a late stage of the litigation. This is very discretionary to the court
Halsey Principles - Whether ADR had a reasonable prospect of success
Courts may have regard to the following circumstances:
- relationship of the parties were acrimonious
- where there was ‘insufficient room for manoeuvre to make mediation a venture which mugshot hav real prospects of success in achieving a compromise’
- a party’s attitude shown that they would not comply with ADR
Are the Halsey Principles exhaustive list?
No, such things like part 36 orders can have an impact on the reasonable refusal of ADR
The claimant’s failure to initiate the ADR process
It is not the case that the claimant simply failed to initiate the ADR process. Both parties are subjected to be expected to do it. It’s not a blame pushing exercise
Silence in the offer to engage with ADR
Silence in the invitation of ADR will only be deemed as reasonable in very rare circumstances, where it is blatantly obvious that ADR is not suitable to the type of dispute.
Practical steps to avoid sanctions when it comes to ADR
- to and co-operate with ADR
- if refusing ADR, state your reasons and justifications
- do not ignore
- respond promptly
- if it is problems with evidence, highlight those as early as possible
- letters in response to be handled with care
Contract clauses concerning ADR
- this may be highlighted contractually
- may be the type of ADR specified to be used
- when to initiate that ADR
- the court is likely to enforce that contractual term
Advantages of using ADR at the pre-action stage
- opportunity to save time and costs
- adjudicative ADR will be used immediately and quickly
- some non-adjudicative ADR will be used quickly and resolve the dispute quickly
- ADR may assist in the clarification of issues before it goes to litigation
- constructive approach may be given early meaning that parties wont be too entrenched when it comes to court
Disadvantages of using ADR at pre-action stage
- time and money may be wasted if the ADR is unsuccessful
- unsuccessful ADR may make relationships between parties worse
- it may be difficult to evaluate the case properly
- ADR may be used tactically rather then wishing to resolve the dispute
When to consider ADR
- general need to review before the issuing of proceedings
- in the directions questionnaires:
- small track cases will give guidance on how to resolve via the use of ADR
- fast and multi tract cases will want an explanation of the use of ADR before it comes to court
What can the court do to encourage the use of ADR at an interim stage
Interim orders may be used to facilitate the use of ADR
- court can order a party or party’s representative to attend court to support the use of ADR
- on application of an interim order, court may give directions for ADR to be used
- court can order a trial of a preliminary issue if the rest of the case is to settle
- court can give specific guidance on the progress of a case, giving warnings of not complying with ADR
- several models for interim orders have been developed to help the use of ADR
Practical factors which are relevant to timing for ADR
- overriding objective
- position regarding costs
- timeframe for reaching resolution
- issues in the case
- availability of information
- availability and importance of evidence
- importance of interim applications
- strength of a case
- antagonism between the parties