Alternative Dispute Resolution: Non-Adjudicative Options

Question 1

What are the main features of non-adjudicative options?

Answer 1

the parties can retain control of both process and outcome.
the agreed process may be relatively simple and involve only the parties/ lawyers as in a negotiation or it may be facilitated by a 3rd party as in mediation.
involvement of a 3rd party is a matter of contractual agreement.
process is normally confidential.
most appropriate where the parties wish to retain control over outcome as well as process.

Question 2

What is the advantage of non-adjudicative ADR?

Answer 2

the final decision is not binding like adjudicative ADR and so a party who is not happy can take their case to litigation.

Question 3

What is mediation?

Answer 3

a neutrally assisted negotiation assisted by a third party (the mediator) who facilitates settlement discussions between the parties by acting as a ‘shuttle diplomat’ by conveying info and offers and concessions between the parties.

Question 4

What is the process of mediation?

Answer 4

1. Opening stage: consists of intros and each party setting out their formal position in relation to issues in case- this will take place in the opening joint session.
2. Exploration stage: takes place partly in open joint meetings and partly in closed private meetings or exclusively in an open joint meeting or alternatively closed private meeting- this will depend on preferences of parties, case issues and mediator view.
3. Negotiation stage: takes place in close private meetings w/ mediator acting as broker between parties. These will be back and forth meetings in which concessions and offers gradually emerge.
4. Settlement/ closing: takes place in joint meetings between all of the parties and/ or between lawyers of parties who have task of drawing up the agreement.

Question 5

What are the advantages of mediation?

Answer 5

it’s flexible
cost effective
confidential
useful for resolving multi-party disputes involving multiple issues.
having a neutral 3rd party which can help reach a tailored solution to parties needs and interests.
Popular in terms of settlement.
avoids adverse precedents being set by court.
preserves relationships
enables parties to be more creative when reaching settlement.
puts parties in the control.

Question 6

What are the disadvantages of mediation?

Answer 6

not appropriate in debt claims where there is no sustainable defence as it may be more advantageous in such cases to issue proceedings and apply for summary judgment.
parties may have contractually bound themselves by a dispute resolution clause to attempt to resolve a dispute by mediation before embarking on litigation.

Question 7

How does mediation happen?

Answer 7

selecting and appointing a suitable mediator, agreeing the terms to mediate, locating and booking the venue for the mediation, collating the key documents and drafting the position statement or case summary.

Question 8

How will the outcome of mediation be enforced?

Answer 8

if settlement is reached, the mediator will confirm the terms agreed with each of the parties.

Question 9

if no settlement has been reached in mediation, what is the result of this?

Answer 9

mediator will summarise the closing position of the parties which may form the baseline for further settlement discussions outside the mediation

Question 10

What is conciliation?

Answer 10

where a neutral third party conciliator helps the party to reach settlement.

Question 11

How does the conciliation process work?

Answer 11

1. conciliator will facilitate negotiation between parties and might propose a decision if parties can’t reach one through.

Question 12

if conciliation is successful, what will this result to?

Answer 12

results in a compromise agreement which can cover issues and interests going outside scope of original dispute.

Question 13

if conciliation is unsuccessful, what will this result to?

Answer 13

the parties can revert to forms of legal redress typically through courts or tribunals.

Question 14

What are the advantages of conciliation?

Answer 14

non-adjudicative facilitative process
a confidential without prejudice basis.
conciliator == legal expert in disputed field.
private process
cheaper
identifies and clarifies main issues in dispute.

Question 15

what are the disadvantages of conciliation?

Answer 15

heavily reliant on conciliator’s skills
doesn’t provide a binding decision or order from conciliator so parties must be willing to voluntarily agree to the resolution proposed.
if there’s a clause in your contract about having to use conciliation, it might have an unfair term if you have to pay or that the conciliation process means it takes longer to solve the complaint than it should.

Question 16

How will the outcome be enforced for conciliation?

Answer 16

this will result in a compromise agreement which can cover issues and interests going outside the scope of the original dispute.

Question 17

if the conciliation is unsuccessful, what is the outcome of this?

Answer 17

the parties can revert to other forms of legal redress, such as going through the courts or tribunals.

Question 18

what is early neutral evaluation?

Answer 18

a process which a neutral 3rd party is appointed by the parties to offer a non-binding evaluation of one or more of the issues in dispute.

Question 19

What is the process of ENE?

Answer 19

Evaluator is instructed by the parties and they will both agree to the terms on which they are instructed and the ambit of the instructions.
the evaluator will investigate independently and make a recommendation based on those investigations.
once evaluator is appointed, the evaluator may wish to hold preliminary meetings with parties to agree the ground rules, the documentation to be provided, whether a hearing is required and to set time limits for each stage of the process.
each party will make written submissions to the evaluator together with evidence and supporting docs. Evaluator may wish to hold meeting w/ parties to obtain further information about issues in dispute.
evaluator will evaluate the evidence and the law bearing in mind the parties’ submissions and produce a recommendation setting out his/ her assessment of each party and produce a recommendation setting out their assessment of the merits of the dispute and likely outcome of it.
the recommendation may or may not concern detailed reasons for the decision depending on the agreement reached between the parties and evaluator.

Question 20

What are the advantages of ENE?

Answer 20

non binding
independent investigation carried out by expert.
parties can control amount and form of the info that’s placed before the evaluator and can identify issues of fact or law that they want evaluator to evaluate.
process enables each party to appreciate the strengths and weaknesses of case and this can encourage and lead to settlement even if parties don’t agree to this.
private and confidential.
useful where party(ies) have taken an unrealistic view of one or more of issues and would benefit from an assessment of the particular issue of the case by an independent person.
without prejudice process.
can be useful to settle disputes that arise during an assessment of costs after the main proceedings have been included.
flexible and parties can tailor this to meet needs of case

Question 21

what are the disadvantages of ENE?

Answer 21

not always appropriate when there are significant issues of fact in dispute.
a losing side may not accept the evaluator’s decision and therefore decide to proceed with litigation.
process can be lengthy and be expensive.
evaluator’s decision is not binding.