Different options for dispute resolution Flashcards
Explain the term Alternative Dispute Resolution (ADR)
ADR is a collective term referring to various methods of settling disputes outside the traditional litigation process.
It includes negotiation, mediation, and arbitration, among other methods. ADR is often preferred over litigation as it is voluntary, confidential, and allows for more flexible, amicable resolutions.
It is actively promoted by courts as a viable alternative to litigation.
Negotiation in ADR
Negotiation is a common form of ADR where the parties and their lawyers discuss potential solutions to the dispute. It can occur during formal meetings or through correspondence. The majority of claims are settled through negotiation as it plays a critical role in achieving resolutions without needing a court-imposed solution.
Mediation
Mediation is a voluntary ADR process where an independent third party helps the disputing parties reach a mutually agreeable solution.
The mediator cannot impose a solution. The process is confidential (‘without prejudice’), meaning the court will not be made aware of the mediation details if it fails and the case proceeds to litigation.
Mediation is flexible, quicker, and often cheaper than litigation.
Arbitration
Arbitration is a form of ADR where an independent arbitrator makes a binding decision on the dispute. It is typically agreed upon by contract or during a dispute. Unlike mediation, arbitration’s outcomes are enforceable, and the decision can be made by experts in the field. While arbitration is often quicker than litigation, it may not be cheaper, and remedies like injunctions are not available.
Court Sanctions for Failure to Engage in ADR
Courts may impose penalties on parties who refuse to engage in ADR without valid justification. This stance was solidified in the case of Halsey v Milton Keynes General NHS Trust (2004), where the Court of Appeal held that refusing ADR without reasonable grounds could lead to a costs sanction. Factors affecting reasonableness include the nature of the dispute, the costs of ADR, and the likelihood of its success.
Advantages of Mediation
- Cost & Speed: Mediation is usually faster and cheaper than litigation or arbitration.
- Flexibility: The process is flexible with no strict legal procedures.
- Privacy: It ensures confidentiality, protecting reputations.
- Preserving Relationships: It’s less adversarial, helping parties maintain ongoing relationships.
- Commercial Solutions: Mediation allows for creative settlements beyond what a court could order.
Disadvantages of Mediation
- No Formal Disclosure: There’s a risk of incomplete information.
- Privacy: Lack of public vindication may be problematic for some clients.
- Ability to Withdraw: Parties can withdraw at any time, which may result in wasted time and resources if the other party is uncooperative.
Advantages and Disadvantages of Arbitration
Advantages:
- Quicker and potentially cheaper than litigation.
- Decision made by an expert with relevant knowledge.
- Confidentiality is maintained.
- The decision is binding.
Disadvantages:
- Less in-depth investigation than litigation.
- Limited appeal rights.
- Costs can still be high due to the need for experts and legal representation.
Explain Litigation
Litigation refers to the legal process of resolving disputes through the court system. It is generally pursued when parties cannot or will not engage in Alternative Dispute Resolution (ADR). Once litigation starts, neither party can withdraw without bearing the cost consequences. The court imposes a legally binding decision, which is the primary advantage of litigation, though it comes at a financial cost. Common civil disputes include contractual issues and negligence claims.
What are the Civil Procedure Rules (CPR)
The Civil Procedure Rules 1998 (CPR) govern the conduct of civil litigation in England and Wales.
The CPR consists of 89 Parts, each dealing with a specific aspect of the civil procedure. Practice Directions supplement the rules, offering further guidance.
The CPR aims to provide a more accessible system for litigants, especially for those representing themselves (litigants in person), by ensuring cases are managed efficiently through the courts and minimizing costs through strict timetables and sanctions for non-compliance.
Civil Courts
In England and Wales, most civil disputes are dealt with in either the County Court or the High Court. The County Court typically handles lower-value cases, while higher-value or more complex cases are dealt with in the High Court. The choice of court depends on the monetary value of the claim and the complexity of the legal issues involved. The courts manage the proceedings to ensure they progress smoothly towards trial.
Stages of Civil Litigation
Stage 1: Pre-Commencement of Proceedings
- Before litigation formally begins, parties must gather evidence and assess the legal and commercial objectives of the client.
- Pre-action protocols are followed, which are designed to encourage early settlement by exchanging information about the dispute and narrowing down the issues in contention.
- The potential claimant must send a Letter Before Claim to the defendant outlining the case, and the defendant must respond with their position.
- Costs and the potential for Alternative Dispute Resolution (ADR) must be discussed at this stage. Failing to follow the protocol can result in cost sanctions.
Stage 2: Commencement of the Claim:
- If settlement cannot be reached, litigation begins by issuing a Claim Form at court, accompanied by Particulars of Claim detailing the specific facts and legal basis of the claim.
- The defendant must respond by filing a Defence. If they wish to counterclaim, they can file a counterclaim as part of their defence.
- Once these pleadings are filed, the court will allocate the case to one of three procedural tracks (Small Claims Track, Fast Track, or Multi-Track) based on the complexity and value of the claim.
Small Claims Track: For claims up to £10,000.
* Fast Track: For claims between £10,000 and £25,000.
- Multi-Track: For claims over £25,000.
The court will manage the case according to the appropriate track to ensure an efficient and proportionate resolution.
Stage 3: Interim Matters
- The court actively manages the case through Case Management Directions, which set out a strict timetable for procedural steps.
- Parties are required to disclose all relevant documents, even those that are unhelpful to their case.
- Evidence, such as witness statements and expert reports, must be exchanged between the parties to prepare for trial.
- The parties may also request interim orders, such as injunctions or specific disclosures, if needed to facilitate the case’s progress.
Stage 4: Trial
* The trial is the formal stage where the case is presented to the judge, who will evaluate all evidence, hear witness testimony, and consider legal arguments.
- The judge determines issues of liability (which party is responsible) and quantum (the amount of compensation or damages to be awarded).
- In addition, the judge will make decisions regarding costs, often ordering the losing party to pay the winning party’s legal fees.
Stage 5: Post-Trial
* After the trial, the losing party may appeal the decision, provided they have grounds to challenge either the judgment or the amount of damages awarded.
- If the losing party fails to comply with the court’s judgment (e.g., by not paying damages or costs), the winning party can apply for enforcement measures.
- Enforcement might involve instructing bailiffs to seize the losing party’s assets or garnishing wages to satisfy the judgment.
Pre-Commencement of Proceedings
