Alternative Dispute Resolution Flashcards
What is the effect of all ADR being ‘without prejudice’?
Parties cannot disclose any information used as part of the ADR process if a resolution is not reached and the matter is subsequently referred back to court for determination
What is mediation?
A form of ADR that involves the agree instruction of an independent third party (mediator) to facilitate discussions between disputing parties with the aim of reaching an agreed settlement
What is arbitration?
A form of ADR that involves the appointment of an arbitrator or panel of arbitrators by the disputing parties. The decision made made by the arbitrators at the conclusion of the procedure is binding on the parties and they are not entitled to subsequently seek a judgment on the matter from the court
Is there a duty on parties to consider ADR?
Yes
When will it be acceptable for a party to refuse an offer for ADR?
When they have justifiable reasons to refuse
What criteria will the court consider in deciding if refusal of ADR is justifiable?
- the nature of the dispute
- the merits of the case
- the extent to which other settlement methods have been attempted
- whether the costs of the ADR would be disproportionality high
- whether any delay in setting up and attending the ADR would have been prejudicial
- whether the ADR had a reasonable prospect of success
If a party receives an invitation to ADR, must they respond?
Yes - failing to respond to an invitation to ADR is unreasonable in and of itself
What can the court do if a party unreasonably refuses to comply with a court order requiring parties to attempt ADR or offer from other side to attempt ADR?
The court can order sanctions against the party refusing - adverse cost orders
What adverse cost orders could the court choose to impose as a result of failure to engage in ADR?
- depriving a party of being awarded their costs even if they are successful in the litigation
- ordering the party to pay some or all of the losing side’s costs as well as their own, even if the party is successful in the litigation
- ordering a higher rate of interest to be paid on damages awarded by the court
- depriving a party of interest on damages awarded by the court
What happens if the parties agree to mediate?
- They will nominate and agree on the appointment of an independent mediator
- parties will send written position statements to the mediator which set out a background to case, the points in dispute and any proposals they may have for settlement
- each party will generally occupy a separate room and the mediator will shuttle between them
- mediator will try to narrow the issues to those genuinely in dispute between the parties and work the parties towards a settlement
What is the advantage of mediation being flexible?
there is no set process - it can be set to the individual circumstances of the case
What is the advantage of mediation being cost-effective?
Mediation is cheaper than litigation generally
What is the advantage of mediation being speedy?
Mediation can be arranged reasonably quickly and can result in sifter resolution of the dispute compared with litigation
What is the advantage of mediation being confidential?
Private process so useful for commercial entities wanting to prevent repetitional damage from litigating or protecting trade secrets from competitors
What is the advantage of mediation preserving relationships?
Moe likely to preserve commercial and personal relationships than an adverbial trial followed by a win/lose out determination
What is the advantage of mediation of settlement terms can be more more creative?
Mediation is not bound like the court is by remedies that are claimed and are within its discretion meaning parties can be more creative in terms of the settlement
What is the advantage of mediation increasing the likelihood of a later negotiation settlement, even if unsuccessful?
Even if an agreement is not reached, it helps parties to understand each other’s position to the point that settlement could take place via negotiations between parties solicitors after mediation
What is the advantage of mediation in that the parties can return to court if a settlement is not reached?
If it is clear that the an agreed settlement will to be reached, parties can be safe in the knowledge that they can commence or continue with proceedings through court
What is the disadvantage of mediation of enforceability of verbal agreements?
Unless there is a written agreement between the parties, then it is not enforceable through the courts
What is the disadvantage of mediation of all parties must agree to a proposed resolution?
If one party, has already shown rigid unwillingness to negotiate, mediation could prove to be a futile exercise