Alternative Dispute Resolution Flashcards
Adjudicative ADR options
Arbitration
Expert/Neutral Determination
how is an arbitration claim started?
issue of an arbitration claim form in accordance with Part 8 procedure
what must a party do if they have had proceedings issued against them where there is a valid arbitration clause in place?
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
an arbitration claim form must include…
- 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
time limit for arbitration claims
claim form to be served within 1 month of issue
when applying for a stay under s9 AA, party applying MUST also be
party to arbitration agreement.
application would not be successful by 2nd/3rd Ds for example
What is the effect of taking any step further than acknowledgement/making any other application in proceedings on ability to stay for abritration?
taken to have ‘submitted’ to court’s jurisdiction - can’t back track
who’s burden is it to prove something should NOT be referred to arbitration and that court proceedigns appropriate?
Claimant
General Principles of arbitration (x3)
- 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
Deciding on arbitration implies parties want
- to choose a tribunal
- hold it in a neutral location
- privacy of proceedings
- deal with dispute efficiently
- have light but efficient court supervision
effective referral to arbitration must contain:
- 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
commencement of arbitration
sending a notice of arbitration (in writing and compliant with requirements (enough detail)) , appointing members of tribunal
where parties agree to have a 3 member tribunal - what is the usual position?
each party appoints 1, then 2 arbitrators appoint a 3rd
Possible awards
- procedural orders
- interim awards/partial awards - interim remedies
- final award - disposing of proceedings
- costs awards
How can arbitration awards be enforced?
domestic - civil claim in High Court (summary procedure s66(1) AA ‘96)
cross-border - New York Convention 1958
Can arbitration decisions be appealed?
v limited grounds.
serious irregularity OR (unless excluded) a point of law
to what extent are parties bound by E/ND
to the extent they have agreed - but it is a final decision on the dispute
what sort of dispute is suitable for E/ND
- highly technical - commercial contexts
- costs disputes after proceedings concluded
typical procedure
- written submissions
- copies of all relevant docs shared
- lawyers to make submissions? if agreed.
- expert inquiry? if agreed
form of decision?
not an award or order, but agreed to be binding = upheld by court
consequences of failing to comply with ED
constitutes a breach of contract - recourse to court
factors taken into account in application to stay proceedings pending ED
- 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.
procedure for challenging/enforcing ED
issue Part 8 proceedings
proceedings for breach of contract - decision then enforceable
Non-adjudicative ADR options
- Early Neutral Evaluation
- Conciliation
- Mediation
Conciliation
no single meaning, normally involves a neutral 3rd party to facilitate negotiation.
process agreed by parties
some have a statutory basis
what stage should ENE be used?
early stages ideal - but can be used at any point and in conjunction with other processes
judicial evaluation
court can order ENE pursuant to CPR r3.1(2)(m) - judicial evaluation can give parties idea of chances of success/outcomes at trial
disputes suitable for mediation
negotiable issues - contract, tort, consumer claims, neighbourhood, housing and family …
best time to attempt mediation
balance between having enough information to be able to effectively negotiate, and losing benefit of cost saving
role of the mediator
- 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
Ethical stds of the mediator
- Competence
- independence and neutrality
- Impartiality
- Fairness
- Confidentiality
- Responsibilty for terminations if outcome unenforceable/illegal/not settling
Confidentiality protection
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
in what circumstances may confidentiality of mediation be overrideen
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
what communications will be protected by without prejudice
- 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
