Alternative Dispute Resolution

Question 1

What is ADR?

Answer 1

“Alternative Dispute Resolution: methods to resolve disputes outside of court proceedings.”

Question 2

Name four types of ADR.

Answer 2

“Negotiation

Question 3

Which type of ADR involves a neutral third party who helps parties reach a non-binding agreement?

Answer 3

“Mediation”

Question 4

Which type of ADR results in a binding decision made by an impartial adjudicator?

Answer 4

“Arbitration”

Question 5

What is Med-Arb?

Answer 5

“A process starting with mediation; if unsuccessful

Question 6

What is the key difference between expert appraisal and expert determination?

Answer 6

“Expert appraisal provides a non-binding assessment; expert determination provides a binding decision.”

Question 7

Which type of ADR is most like mediation, but may involve some evaluation?

Answer 7

“Conciliation”

Question 8

Name an ADR process that does not involve a third party.

Answer 8

“Negotiation”

Question 9

List three potential advantages of ADR.

Answer 9

“Less expensive

Question 10

Why might ADR help preserve relationships?

Answer 10

“It allows parties to consider factors like business relationships and emotions

Question 11

How does ADR offer outcomes that reflect risks?

Answer 11

“In non-binding ADR

Question 12

How does ADR provide greater control to the parties?

Answer 12

“Parties can choose the third party involved (e.g.

Question 13

In what types of disputes is Expert Determination particularly suitable?

Answer 13

“Disputes requiring technical knowledge”

Question 14

What is a disadvantage of Expert Determination?

Answer 14

“May not be suitable if parties wish to be fully heard or there are issues of credibility.”

Question 15

What are some court expectations regarding ADR?

Answer 15

“The court expects parties to act reasonably in considering and engaging in ADR

Question 16

What are the responsibilities of a lawyer in relation to ADR?

Answer 16

“Ensure the client is aware of ADR options

Question 17

When might parties include an arbitration clause?

Answer 17

“When negotiating a contract to cover future disputes.”

Question 18

Can parties agree to arbitration after a dispute has arisen?

Answer 18

“Yes

Question 19

Is arbitration a long and formal process?

Answer 19

“It can be a long and formal process governed by rules and statute.”

Question 20

When should a party engage in ADR?

Answer 20

“Firstly

Question 21

What are the benefits of engaging in ADR early?

Answer 21

“Cost saving and better relationships and information.”

Question 22

What are the benefits of engaging in ADR later?

Answer 22

“Better understanding of each other’s case and the available evidence.”

Question 23

What are the CPR influences on the timing of ADR?

Answer 23

“Pre-action protocols and practice directions

Question 24

What do Directions Questionnaires require legal representatives to confirm regarding ADR?

Answer 24

“That clients understand the need to try to settle

Question 25

What is the court likely to want to know at a case management conference (CMC) regarding ADR?

Answer 25

"What steps the parties have taken to explore ADR."

Question 26

How does the court encourage parties to engage in ADR?

Answer 26

"By providing information about ADR

Question 27

What are the two main ways the court encourages ADR?

Answer 27

"Providing information and using its powers regarding proceedings (staying or ordering)."

Question 28

What is the usual costs order in English court cases?

Answer 28

"The unsuccessful party pays the successful party's costs."

Question 29

What discretion does the court have regarding costs?

Answer 29

"Costs are always at the discretion of the court."

Question 30

What is one of the factors the court considers when making a costs order?

Answer 30

"The conduct of the parties

Question 31

How does the court use costs to encourage ADR?

Answer 31

"By rewarding positive ADR behavior and punishing poor behavior in costs."

Question 32

What happens if a successful party in litigation refused to engage in ADR?

Answer 32

"The court will consider whether that refusal was reasonable when assessing costs."

Question 33

Who has the burden of proof when a party claims the successful party should be deprived of costs for refusing ADR?

Answer 33

"The unsuccessful party."

Question 34

List some factors the court considers when determining the reasonableness of a refusal to engage in ADR.

Answer 34

"The nature of the dispute

Question 35

Does the court penalize a party for failing to suggest ADR?

Answer 35

"Not usually

Question 36

How is silence in the face of an offer to engage in ADR treated?

Answer 36

"It is likely to be considered unreasonable and may be penalized in costs."

Question 37

What should a party do upon receiving an offer to engage in ADR?

Answer 37

"Consider the offer with legal advisors

Question 38

What powers does the court have at a CMC to encourage ADR?

Answer 38

"Order a stay for ADR

Question 39

What is the purpose of requiring a witness statement explaining a refusal to engage in ADR?

Answer 39

"To create a record for the court to consider on costs and to encourage the identification and resolution of obstacles to ADR."