chapter 3 pt 2 Flashcards
6 ways courts may use interim orders to support ADR?
order legal reps to attend court in support of ADR, on application for interim order court may give directions to support ADR, court can order a preliminary if rest of case may settle, give guidance warning cost penalities may follow if not followed, order for ADR in complex cases, give WS explain why ADR not appropriate
2 situations when it may be valid to refuse ADR?
need a key court decision first, if issues haven’t been clarified in SoC or WS not available
when not reasonable to refuse ADR?
refuse until up to and until all WS are completed if steps could have been taken to facilitate earlier use of ADR
what was decided since 1st April 2013 concerning full disclosure?
menu of options available for full disclosure
should parties agree disclosure if it’s possible?
yes
what happens if parties don’t agree disclosure?
appropriate orders will be made at first case management conference with cost budget in mind
what can court do in regards to disclosure and ADR?
order to disclose to support ADR
how can the courts and parties appropriate use of expert evidence?
consider ADR as well as litigation
when can a cost sanction be made?
when one party has made reasonable attempts to settle earlier and other has frustrated settlement attempts until close to trial
can the court consider ADR options when giving directions prepatory for trial?
yes
when can ADR be used in relation to appeals?
after a judgment, to avoid an appeal, following permission to appeal, or to assist with enforcement of an order made
what is it unreasonable to do before appeal?
avoid ADR because costs exceed the amount in issue
what will the judge do if permission to appeal is given?
consider whether the case is suitable for mediation
what does permission to appeal imply?
that the case has a reasonable prospect of success
how many of those granted permission to appeal succeed? what does this mean for mediation
about 40%, both sides have something to gain
what has happened in recent cases to parties qho have rejected ADR after judgment and prior to an appeal?
penalized in costs
overriding objective?
support the use of ADR as early as is reasonable possible
what happens in relation to timeframe for reaching resolution?
judge, lawyers and parties may engage in a comparative study of time to reach resolution, litigation vs. ADR
availablity of info and ADR?
info needed to evaluate and resolve, as to strengths of case, does not need to be in the form of formal evidence for ADR
how can expenses be saved as regards evidence in non-adj ADR?
not essential to prove a case
when might it be better to wait for the exchange of evidence?
low level of trust between parties, issues are strongly contested
does a lawyer need to wait for full disclosure to evaluate a case?
no, client just needs to be well advised on merits based on what is present
position as regards evidence in adjudicative ADR?
appropriate evidence may need to be available to decision-taker
position as regards interim orders?
important where interim injunction migth best protect a party’s position
can ADR be undertaken once interim order has been sought?
yes
can the arbitrator have interim powers in adjudicative ADR?
yes
can mediators make an interim order?
no
can strength of a case justify refusal of ADR?
no
what can a high level of antagonism lead to?
might need to go to trial, if antagonism relates to evidenc and interim application so case is difficult to asses
can anatagonism completely rule out ADR?
no, if other factors make it more appropriate, experienced mediator may help parties move forward
result of Lord Justic Jackson review for ADR?
appropriate for low value construction disputes and small business disputes, recommended a streamlined procedure
position as regards clinical negligence and ADR?
Pre-action protocol for resolution of clinical disputes supports earlier resolution of claims
example of special case that creates issue as regards timing of ADR?
clinical negligence and late settlements
issue with clincial negligence and late settlements?
claims with merit not being settled until after the issue of proceedings
