Alternative Dispute Resolution

Question 1

Adjudicative ADR options

Answer 1

Arbitration
Expert/Neutral Determination

Question 2

how is an arbitration claim started?

Answer 2

issue of an arbitration claim form in accordance with Part 8 procedure

Question 3

what must a party do if they have had proceedings issued against them where there is a valid arbitration clause in place?

Answer 3

Acknowledge service within 14 days (BUT NOT MORE) challenging the jurisdiction of the court, and apply for a stay of proceedings under s9 Arbitration Act 1996

Question 4

an arbitration claim form must include…

Answer 4

• a concise statement of the remedy claim
• and any questions on which the C seeks the decision of the court
• details of arbitration award challenged y C - parts/grounds
• show statutory reqs met
  -specify section of AA96
• ID which D’s order is sought against
  -ID persons on whom claim form should be served

Question 5

time limit for arbitration claims

Answer 5

claim form to be served within 1 month of issue

Question 6

when applying for a stay under s9 AA, party applying MUST also be

Answer 6

party to arbitration agreement.
application would not be successful by 2nd/3rd Ds for example

Question 7

What is the effect of taking any step further than acknowledgement/making any other application in proceedings on ability to stay for abritration?

Answer 7

taken to have ‘submitted’ to court’s jurisdiction - can’t back track

Question 8

who’s burden is it to prove something should NOT be referred to arbitration and that court proceedigns appropriate?

Answer 8

Claimant

Question 9

General Principles of arbitration (x3)

Answer 9

• object of arbitration is to obtain fair resolution of disputes by an impartial tribunal without unnecessary delay or expense
• parties should be free to agree how their disputes are resolved, subject only to such safeguards as are necessary in the public interest
• court should not intervene except as provided by AA’96

Question 10

Deciding on arbitration implies parties want

Answer 10

• to choose a tribunal
• hold it in a neutral location
• privacy of proceedings
• deal with dispute efficiently
• have light but efficient court supervision

Question 11

effective referral to arbitration must contain:

Answer 11

• dispute or difference
• arbitratable dispute
  -agreement to arbitrate
• in writing (for AA’96)
• nature of dispute must fall within terms
• parties must have had legal capacity to enter the agreement
• parties must find willing tribunal
• contractual conditions precedent complied with

Question 12

commencement of arbitration

Answer 12

sending a notice of arbitration (in writing and compliant with requirements (enough detail)) , appointing members of tribunal

Question 13

where parties agree to have a 3 member tribunal - what is the usual position?

Answer 13

each party appoints 1, then 2 arbitrators appoint a 3rd

Question 14

Possible awards

Answer 14

• procedural orders
• interim awards/partial awards - interim remedies
• final award - disposing of proceedings
• costs awards

Question 15

How can arbitration awards be enforced?

Answer 15

domestic - civil claim in High Court (summary procedure s66(1) AA ‘96)
cross-border - New York Convention 1958

Question 16

Can arbitration decisions be appealed?

Answer 16

v limited grounds.
serious irregularity OR (unless excluded) a point of law

Question 17

to what extent are parties bound by E/ND

Answer 17

to the extent they have agreed - but it is a final decision on the dispute

Question 18

what sort of dispute is suitable for E/ND

Answer 18

• highly technical - commercial contexts
• costs disputes after proceedings concluded

Question 19

typical procedure

Answer 19

• written submissions
• copies of all relevant docs shared
• lawyers to make submissions? if agreed.
• expert inquiry? if agreed

Question 20

form of decision?

Answer 20

not an award or order, but agreed to be binding = upheld by court

Question 21

consequences of failing to comply with ED

Answer 21

constitutes a breach of contract - recourse to court

Question 22

factors taken into account in application to stay proceedings pending ED

Answer 22

• does agreement create an enforcebale obligation?
• extent of compliance with pre-action protocol
• is dispute suitable for ED?
• Cost compared to litigation
• which would be quicker? ED or court?
• overriding objective
• would parallell proceedings be needed.

Question 23

procedure for challenging/enforcing ED

Answer 23

issue Part 8 proceedings
proceedings for breach of contract - decision then enforceable

Question 24

Non-adjudicative ADR options

Answer 24

• Early Neutral Evaluation
• Conciliation
• Mediation

Question 25

Conciliation

Answer 25

no single meaning, normally involves a neutral 3rd party to facilitate negotiation.
process agreed by parties
some have a statutory basis

Question 26

what stage should ENE be used?

Answer 26

early stages ideal - but can be used at any point and in conjunction with other processes

Question 27

judicial evaluation

Answer 27

court can order ENE pursuant to CPR r3.1(2)(m) - judicial evaluation can give parties idea of chances of success/outcomes at trial

Question 28

disputes suitable for mediation

Answer 28

negotiable issues - contract, tort, consumer claims, neighbourhood, housing and family …

Question 29

best time to attempt mediation

Answer 29

balance between having enough information to be able to effectively negotiate, and losing benefit of cost saving

Question 30

role of the mediator

Answer 30

• chair meetings and manage process
• set agenda and suggest order of things
• control form of mediation
• discussions/private meetings
• time limits on exchanges of info/discussions
• prevent interventions when each side giving statements
• control questions

Question 31

Ethical stds of the mediator

Answer 31

• Competence
• independence and neutrality
• Impartiality
• Fairness
• Confidentiality
• Responsibilty for terminations if outcome unenforceable/illegal/not settling

Question 32

Confidentiality protection

Answer 32

without prejudice privilege protects genuine attempts to settle (only protects parties)
a confidentiality clause can add to this
confidentiality agreements exists between party and mediator - provides them with protection

Question 33

in what circumstances may confidentiality of mediation be overrideen

Answer 33

action by one or both parties against mediator for breach of contract/negligence
action by a party against solicitors for pro neg arising out of their conduct at mediation
- exceptional and limited circumstances

Question 34

what communications will be protected by without prejudice

Answer 34

• oral or written comms between parties and mediator made for purposes of exploring settlement
• comms created for purpose of trying to pursuade parties to mediate
• may include info obtained from investigations carried out as part of mediation