Alternative Dispute Resolution

Question 1

What are Different Types of Alternative Dispute Resolution (“ADR”)?

Answer 1

Bipartisan:

• Negotiation: Bargaining solely between the Parties to reach an Agreement.

Third-Party Involvement, Non-Binding:

• Mediation: Dispute Resolution involving a Mediator to facilitate communication.
• Conciliation: Dispute Resolution involving a Conciliator to propose solutions and nudge toward Settlement.
• Expert Appraisal: Opinion on a technical issue.
• Expert Evaluation: Opinion on a specific legal issue based on evidence and arguments.
• Early Neutral Evaluation: Opinion on the legal merits of each Case based on evidence and arguments.

Third-Party Involvement, Binding:

• Arbitration: Dispute resolution by argument before and decision of an Arbitrator.
• Expert Determination: Dispute resolution by argument before and decision of a Technical Expert.

Question 2

Which Procedural Stages specifically require consideration of ADR?

Answer 2

• Pre-Action.
• The Costs Budget.
• The Directions Questionnaire.
• The Case Management Conference.

Question 3

What are the Court’s Powers for Encouraging ADR?

Answer 3

• Cost Penalties on Victors.
• Stays of the Proceedings to explore options.
• Directions to consider ADR and explain one’s reasoning in that regard.

Question 4

When deciding whether to impose a Cost Penalty on the Victor for refusing ADR, what will the Court consider?

Answer 4

• Whether ADR had a reasonable prospect of success.
• Whether ADR would have been disproportionately costly.
• Whether ADR was suitable to the Dispute given its nature.
• Whether, and how seriously, Settlement was attempted.
• Whether the Victor’s case was so strong to merit confidence in Litigation.
• Whether any delays in arranging or attending ADR would have been prejudicial given proximity to Trial.