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
issue with how parties can agree to infor disclosed in other types of determination and evaluation?
each party can give info to 3rd p but not each other=undermine trust
why is it strategic disclosing docs?
provide enough info to show strength of case, protect what is sensitive or private
what protects info given by client to lawyer?
professional duty of confidentiality
how does principle of legal professional privilege work?
protecting from disclosure all communications between lawyer and client where purpose is to give legal advice
how does legal advice privilege work?
only extends to communication between lawyer and their client, not communications with other professionals even if they give legal advice
do the principles of legal privilege cover ADR?
Yes
who can waive legal professional privilege?
client
what must a lawyer do if they want to share info?
get permission from client in advance
does the court tend to override professional privilege?
no
when can info not be privileged?
info is otherwise disclosable
what is the test for privilege when communicating with 3rd parties?
where info or advice sought from 3rd party privilege may be claimed if sole purpose was to assist in litigation
will info communicated to ind 3rd party in ADR attract legal professional privilege?
no protected by duty of confidentiality
intention of without prejudice?
protect from disclosure any communications made between parties with a view to settling (can’t be used in litigation/courts)
does info need to be marked as without prejudice to be protected?
no
does without prejudice still apply if settlement reached or proceddings have started?
yes
when can info said in ADR be used?
circumstances not in court, e.g. counsel-to-counsel negotiation
who can waive without prejudice?
parties but it is joint so can’t be waived by only 1
can a third party claim protection if parties waive without prejudice?
no but usually they insert their own confidentiality clause
can you draw a negative inference from a party refusing to waive privilege?
no
what purposes can without prejudice be excluded from?
e.g. without prejudice save as to costs
how to exclude prejudice?
expressly state it
