Different options for dispute resolution Flashcards
What is alternative dispute resolution?
Way of settling disputes outside the traditional litigation process
What are 3 key methods of dispute resolution?
Mediation
Arbitration
Litigation
Will the courts impose penalties for failure to engage in ADR?
Yes - penalties may be imposed for failure to engage (unless party can justify their stance to the court) or failure to respond to reasonable proposal to use ADR
If a party has failed to respond to a reasonable proposal to attempt settlement by ADR, who has the burden of showing that refusal is unreasonable?
Burden is on the other party to show that refusal is unreasonable & that this should impact any subsequent order for costs
What is mediation?
An independent third bird/body acting as a ‘go-between’
What is arbitration?
A parallel dispute resolution process outside the court
Which method of dispute resolution is most cost effective?
Mediation - significantly cheaper than arbitration & litigation
Arbitration is cheaper than litigation, but can be q expensive (eg. fees for qualified expert arbitrator)
Which method of dispute resolution is the quickest?
Mediation can be undertaken on short notice
Arbitration is usually quicker than litigation (except perhaps fast track cases)
How flexible is mediation?
Very flexible → parties remain in full control (can choose procedure, withdraw at any time)
Only possible to reach settlement by consent (v non-confrontational way of solving problem(
How flexible is arbitration?
Relatively flexible (can be tailored to dispute) - although final binding award is outside parties’ control
Which methods of dispute resolution are private & confidential?
Mediation & arbitration
Is an agreement reached through mediation binding?
Not automatically binding
→ Can be enforced through courts only if formalised in a written & binding contract (as a breach of contract claim)
Is an agreement reached through arbitration binding?
Yes: the winning party can apply to the High Court for permission to enforce the final award as if it were a court judgement
Does the court have the power to compel parties to resolve their disputes through ADR?
The court does not have the power to force parties to take part in ADR, but can impose adverse cost orders for failing to do so
What sanctions can the court impose for a failure to comply with ADR?
–> Get non-complying party to pay additional costs on indemnity basis
–> Order non-complying party to pay interest at higher rate than normal (not exceeding 10% above base rate)
