Different Options for Dispute Resolution Flashcards
Litigation should be the ___________
Last Resort
Would the court impose a costs penalty on a party for ignoring an offer to mediate?
If the other party does not engage at all, then yes (Halsey Principle)
After arbitration has concluded, a party who is dissatisfied with the outcome:
a) is bound by the determination
b) may refer the matter to the court to decide instead
c) may use another form of alternative dispute resolution
a) is bound by the determination
Litigation is the quickest and most cost-effective way to resolve a dispute. True or False?
False
Which of the following is not a method of alternative dispute resolution:
a) Litigation
b) mediation
c) early neutral evaluation
c) litigation
Can a court impose sanctions if a party has unreasonably refused ADR?
Yes
Key differences between mediation and arbitration?
Arbitration is more formal, and a decision by an arbitrator is legally binding, whereas in mediation it is not
In what circumstances is it reasonable to refuse ADR?
It depends on:
a) nature of the dispute
b) merits of the case
c) the extent to which other settlement methods have been attempted
d) whether the costs of ADR would be disproportionately high
e) whether any delay in setting up and attending the ADR would have been prejudicial
f) whether ADR had reasonable prospects of success
What sanctions are available if a party unreasonably refuses ADR?
These are known as Adverse Costs Orders and include:
a) depriving a party of being awarded their costs even if successful
b) ordering the party to pay some or all of the losing side’s costs
c) ordering a higher rate of interest to be paid on damages
d) depriving a party of interest on damages
Will the court order an Adverse Costs Order if a party refuses to engage in ADR, claims it is due to not having any prospects of success, but does not give any reasons?
Yes, parties should always provide their reasons and objections
What form of ADR is most suitable for a client looking for a flexible arrangement?
Mediation
What form of ADR is most suitable for a client looking for a quick arrangement?
Arbitration
What form of ADR is most suitable for a client looking to preserve the relationship with the other side?
Mediation
If a client wants to proceed straight to litigation, should they still consider ADR?
Yes, parties are always required to consider ADR
How many stages are there in the litigation process?
5:
- Pre-court involvement
- Commencing and defending formal proceedings
- Case management by the court
- Trial
- Post-Trial
A client has a dispute with a builder. The builder carried out work on the client’s roof. The roof leaked, causing £20,000.00 worth of damage. The builder requested the client agree to mediate, and offered £2,000 to settle. The client wants his day in court.
What advice should a solicitor give to the client?
A. The client should engage in mediation with the builder - if he fails to do so, the court will impose costs sanctions on him
B. The client should ignore the invitation to mediate on the basis that he has not technically refused. This means no costs sanctions will be imposed.
C. The client should write back to the builder stating that he wants his day in court. The solicitor should warn the client that the court is likely to impose sanctions for failure to engage in ADR.
D. The client should write back to the builder refusing to mediate on the basis that the offer made is unreasonable. The court will be unlikely to impose sanctions if it feels the refusal is justified.
C - The client should write back to the builder stating that he wants his day in court. The solicitor should warn the client that the court is likely to impose sanctions for failure to engage in ADR.
A client is a care dealer. A customer purchased a vintage car, and contact the client with a complaint, saying the car is not as described and not worth the amount the customer paid for it. The customer generally purchases between four and six vehicles a year from the client and is widely known in the community.
Which of the following is the client’s best option:
A. Mediation, as it is quicker
B. Mediation, as it is confidential
C. Mediation, as it is most likely to result in a preservation of the existing relationship
D. Arbitration, as the parties can involve witnesses and experts
E. Arbitration, as it is best that a confidential decision is imposed
C - Mediation, as it is most likely to result in a preservation of the existing relationship
A client writes to their opponent offering to mediate on seven separate occasions. The opponent refuses two occasions and ignores the remaining. The client is the defendant, and at trial, a judge finds in favor of the claimant, awarding him damages.
How will the court deal with the legal costs of the action?
A. The court will order that the client pay their opponent’s legal costs, as well as their own, as the client lost the case
B. The court will order that the client only pay a proportion of their opponent’s legal fees, as well as their own
C. The court will other that the opponent pays their own legal costs
D. The court will order that the opponent pays the client’s full legal costs as well as their own
E. The court will order that the opponent pays a percentage of the client’s legal costs, as well as their own
E- The court will order that the opponent pays a percentage of the client’s legal costs, as well as their own
A company enters into an agreement with a customer to appoint an arbitrator for a dispute. Arbitration is successful. The company feels the arbitrator may have misunderstood the law.
Which of the following reflects the legal position?
A. The company can refer the matter back to the arbitrator to reconsider
B. The company can appeal to the High Court on the basis that the arbitrator wrongly applied the law
C. The company can seek permission of the High Court to challenge the decision on the basis that the arbitrator wrongly applied the law
D. The company can request that the matter be heard by a different arbitrator
E. The company is bound by the decision
B - The company can appeal to the High Court on the basis that the arbitrator wrongly applied the law
A client has repeatedly attempted to settle a dispute by mediation. Opponent attended mediation, but this failed. The client has written again to arrange mediation, but it has been ignored. It is now been 6 weeks since opponent has responded to communication.
What advice should a solicitor give their client?
A. The client should issue proceedings against their opponent. Mediation has been unsuccessful and it is clear that the opponent does not wish to engage further.
B. The client should issue proceedings against their opponent. It is most appropriate for the court to deal with the matter.
C. The client should issue proceedings against their opponent. After a 6 week time lapse, the parties are automatically entitled to apply to the court for resolution.
D. The client should keep trying to arrange mediation.
A - The client should issue proceedings against their opponent. Mediation has been unsuccessful and it is clear that the opponent does not wish to engage further.
