ch 18 Flashcards
what is the final stage of the ADR process?
recording a settlement
what needs to be ensured in settling the agreement?
comprehensive, clear, detailed terms
client understands and accepts agreement
terms are appropriately recorded and enforceable
issue if client disagrees with term but under a funding arrangement?
lawyer may be entitled to withdraw if client refuses reasonable settlement
what should a lawyer do if client is publicly funded and refuses a reasonable offer to settle?
warn the client that there must a report to LAA which may lead to funding being withdrawn
how are ADR agreements recorded?
governed by original agreement to use ADR
what should the result of arbitration be?
an arbitration award
result of early neutral evaluation?
report from neutral 3rd party
result of mediation and negotiation?
oral agreement
how to avoid uncertainty with agreements?
make everything only binding once written
‘subject to contract’
how will successful non-adj ADR finish?
contract compromising the dispute
contractual principles apply
what is full and final settlement?
whole of the dispute can no longer be litigated
replaced by terms of the compromise
make sure the dispute is defined
what can happen if full and final settlement is not written with care?
party may then start or continue proceedings
records made during ADR?
record it
agree who drafts the agreement
time limit to send the draft
costs
when may it not be needed to record a settlement?
result is an apology, explanation or clarification
when will a dispute need to be recorded?
relates to legal rights
types of contracts?
oral, written, exchange of letters, other
what agreements will result in an oral contract?
non-adj ADR
how to enforce oral contract?
all elements
unless conditional-state it
when will agreement result in exchange of letters?
many non-adj ADR
no need for formal documents
no proceedings=no court order
after proceedings=no court order=no need
what happens with an exchange of letter?
solicitor on one side writes a letter setting out terms
other replies indicating agreement
when will an exchange of letters form a contract?
where there is a clear offer and acceptance
when will a formal written contract be needed with non-adj ADR?
complex terms
outcome is important
ongoing commercial relationship
law requires-consumer credit, legal assignment, guarantee, contract for sale of land
what should be included in the formal written contract?
preamble setting out contract is to resolve a dispute
summarize matters that were in dispute
makes issues settled clear
what happens if an original contract is being varied?
2 agreements: compromise and variations
