Alternative Dispute Resolution Flashcards
If proceedings are commenced in breach of an agreement to use ADR, what 2 things is the court likely to do?
- Grant a stay of proceedings
- Award costs on an indemnity basis
What is mediation?
Confidential process where a mediator (impartial third party) facilitates the resolution of disputes
Moves between rooms each with party in
Can a mediator make a binding decision?
No - solution more likely to be commercial than a legally correct one
E.g. preferential sales rates
Court might be able to enforce settlement (depends on how it is reached)
When would mediation be used?
Re factors
- Documents/evidence not important
- Parties want to be in control of process
- Interested in a cheaper and quicker (often a single day bar preparation) solution
How are costs dealt with in mediation? Who will meet the costs of the mediation itself?
- Likely to be agreed on by parties and incorporated into settlement agreement?
- Mediator fee normally borne by parties equally - jointly and severally liable to mediator for it
Can the mediator advise parties on how to record the settlement terms?
Yes - if the parties request him to do so
What is arbitration? What is done to jurisdiction of the court when it is used?
An impartial adjudicator (who can be chosen by parties) makes a final and binding decision - jurisdiction of court is ousted
Included in contract or chosen to settle dispute
Can an award of an adjudicator be enforced?
Yes - in same manner as judgement of the court
Is just as contentious/adversarial as litigation
What are the benefits of arbitration?
- Privacy
- Easier to enforce in certain jurisdictions
- Can choose a specialist
- Flexibility of arbitration; suit needs of parties
- Faster than litigation (but typically as costly as evidence may be considered)
Can an arbitrator’s award be appealed?
On restrictive grounds: serious irregularity and on point of law
What is med-arb?
Parties initially try to mediation, then move to arbitration if unsuccessful
What is the difference between an expert determination and an expert appraisal?
Expert determination gives a binding decision, expert appraisal does not
Suitable for disputes requiring technical knowledge
How should the parties provide for an expert’s determination to be final and binding?
Including within terms of appointment a provision that it is final and binding
Rather than agreeing in writing
What is an early neutral evaluation? Is it binding?
A neutral party with specialist experience will consider evidence and provide non-binding view of case which may help parties narrow issues and settle
What is conciliation?
Independent neutral 3rd party helps resolve disputes - facilitative like mediation but can involve an evaluation
Meaning of ‘conciliatino’ vary
Will often form part of statutory/regulatory scheme
