ch 5 pt 1 Flashcards
what are the 6 ways of protection of communications in ADR?
professional duty of confidentiality, legal professional privilege, without prejudice, contractual confidentiality clause, standards of ADR providers, regulatory standards
4 difficulties that can arise with confidentiality?
dispute about terms of settlement need reference to ADR, challenge a settlement reached improperly, allegation of potential negligence or breach of professional conduct, if ADR not successful need ADR as evidence of something
what argument will be made in relation to disregarding confidentiality?
court look at some material as it’s in the interest of justice
in most cases will parties be successful in arguing interest of justice?
no confidentiality will prevail
is there a duty of disclosure in ADR?
no
when does duty of disclosure arise in ADR?
pre-action protocol, agreed between parties, court order
if not provided in agreement or preaction protocol can parties keep that info private?
yes
why is sufficient sharing of information necessary?
3rd party needs to assess strength of case
ways sufficient information can be shared?
agreement, voluntary basis, reaction to developments in process
how is mediation governed?
mediation agreement or published rules of the mediation provider
will parties agree on info to give to mediator?
yes but mediator not to reveal
how is disclosure dealt with in adj ADR?
parties agree on extent of mutual disclosure
what happens in adj ADR if no agreement on disclosure?
tribunal will determine scope of disclosure
can one party only provide info to the arbitrator?
no
how is info disclosed for other kinds of evaluation and determination?
parties agree
