Different Options for Dispute Resolution Flashcards
how is public perception of litigation characterised?
slow + expensive + out of touch judges
where are civil litigation disputes more likely to be resolved now?
lawyers’ offices or via virtual meetings
purpose of the £1B reform programme in courts’ system?
reduce reliance on buildings, face-to-face hearings, paper
ADR methods as alternatives to court proceedings?
arbitration
mediation
negotiation
when should ADR procedures be considered?
at 1st interview w client + reviewed regularly thereafter
status of litigation in relation to ADR?
considered the last resort
what does ADR refer to?
means of settling disputes outside of traditional litigation process
what is negotiation in the context of ADR?
form of ADR where parties + lawyers discuss possible solutions
role of independent 3rd party in ADR?
assist the parties in reaching their own solution w/o imposing one
what does “w/o prejudice” mean in ADR context?
discussions can’t be disclosed if court proceedings follow
how does arbitration differ from litigation in terms of voluntary participation
arbitration is voluntary if an agreement exists, but litigation isn’t
what happens once litigation starts?
neither party can withdraw w/o paying the opponent’s costs
what should a solicitor discuss with the client when a dispute arises?
the availability of ADR
when should ADR not be used?
when it’s obviously inappropriate, eg requiring injunction
when party can’t be trusted to comply w award
when party is unwilling to take part
what does CPR 1998 require re ADR?
parties must consider use of ADR procedures
what happens if party decides not to engage in ADR?
costs penalties may be imposed
What can the court now lawfully do regarding ADR following the case of Churchill v Merthyr Tydfil CBC?
Stay proceedings or order parties to engage in non-court based dispute resolution
What must solicitors confirm to their clients regarding ADR?
They have explained the need to try to settle, options available, and possible costs sanctions
Why is the independence of the third party important in ADR?
It encourages open discussions and reduces aggression between parties
what should be discussed w client re mediation?
availability of mediation as an option
role of mediator in a typical mediation process?
act as a go-b/w + facilitate discussions
main advantages of mediation?
independent 3rd party may help lead parties to settlement
why can mediation be cheaper than arbitration + litigation?
process is quicker
what flexibility does mediation offer to parties involved?
parties may choose procedure to be followed
key benefit of privacy of mediation?
clients aren’t publicly exposed to the circumstances or outcome of the dispute
why is mediation ideal for preserving business relationships?
it allows parties to solve their problems non-confrontationally
what advantage does a 3rd party bring to mediation re settlement terms?
may assist in arriving at realistic + workable terms
what does mediation allow if a client is unhappy with the progress?
client can withdraw at any time
when is mediation not appropriate?
When ruling on point of law or an injunction is required
what is a risk associated with the lack of formal procedures in mediation?
parties may resolve disputes w/o knowing all facts
what disadvantage does privacy in mediation present for some clients?
clients may lose opportunity for public vindication
can a party be forced to engage in mediation?
no, no one can be forced to engage against their wishes
can agreement reached through mediation be automatically enforced like a court judgement?
no, it’s not automatically binding.
but if parties agree to terms, it becomes a contract, and breach of this contract = claim
what happens in party doesn’t fulfil terms of mediated agreement?
other party can sue for breach of contract
advantages of mediation over litigation?
- involvement of independent 3rd party
- lower cost
- faster resolution
- flexibility in process
- preservation of business relationships
- focus on commercial reality
- privacy of proceedings
- ability to withdraw from the process
disadvantages of mediation?
- enforcement of agreement is not automatic
- limited disclosure of info
what is arbitration + how does it differ from litigation?
parallel DR process that substitutes litigation. once agreed upon, parties can’t use normal court processes.
how can arbitration arise?
- contractual obligation: arbitration clauses in business contracts in industries like construction + shipping.
- mutual agreement: no arbitration clause? parties can agree to arbitration after dispute arises + choose arbitrator w/ relevant expertise
common arbitration clause in business contracts?
any dispute related to the contract will be resolved by arbitration under XXX rules.
no. of arbitrators: [one/three]
language of arbitration: english
governing law: substantive law of E&W
can parties choose their own arbitrator in arbitration?
yes, if no pre-existing clause, parties can agree to arbitration + select arbitrator w/ relevant expertise
what governs arbitration in the UK?
arbitration act (AA) 1998, but ONLY IF arbitration agreement is in WRITING.
how is the arbitrator chosen?
may be specified in original contract.
no?
parties can choose their own arbitrator w relevant expertise
how does arbitration procedure compare to court procedure?
arbitration: less formal
is the decision of arbitrators binding?
yes, binding on both parties
advantages of arbitration over litigation?
- usually quicker + may be cheaper than court but need to pay arbitrators.
- less formal
- expertise of arbitrator
- private, preserving confidentiality
- more practical solutions than court orders
- binding decisions
key distinction b/w arbitration + mediation?
arbitrator’s decision = binding, unlike mediation outcomes
disadvantages of arbitration?
- limited investigation depth
- restricted remedies: injunctions are unavailable
- may not be cheap
- binding decisions w/ very limited rights of appeal
can winning party enforce arbitration award like a court judgment?
yes, can apply to HC under s66 AA 1996 for permission to enforce the award
why might parties prefer arbitration for business disputes?
privacy + confidentiality help preserve business relationships + prevent public awareness of disputes
what happens if parties don’t engage in ADR?
they must proceed w litigation through courts. once started, neither party can withdraw w/o paying opponent’s costs
main advantage of litigation?
court imposes binding solution, breaking deadlock b/w parties
common types of civil disputes?
- contractual disputes eg sale of unsatisfactory goods
- negligence claims eg RTA, workplace injuries, inadequate professional advice
what governs civil litigation in the UK?
Civil Procedure Rules (CPR) 1998, which dictate process for pursuing claim through courts
how are CPR structured?
has 89 Parts, each covering specific aspect of civil procedure.
practice directions (PDs eg PD 36) provide additional details on the rules
aim of CPR 1998?
create more user-friendly system, esp. for litigants in person, and ensure disputes are resolved efficiently + cost effectively.
what powers do courts have under CPR?
courts can:
1. set timetables
2. make directions
3. impose sanctions to ensure compliance
where are most civil disputes heard in E&W?
county court (CC) or
high court (HC) - depends on complexity + value of claim
who is the claimant + defendant in litigation?
C: person/body issuing claim
D: party against whom the claim is issued
roles of judges in civil courts?
district judges: handle claims up to £25k + interim apps
circuit + HC judges: handle claims exceeding £25k
5 stages of litigation?
- pre-commencement of proceedings
- issuing proceedings
- case management
- trial
5.post-trial matters
what must be considered during stage 1 (pre-commencement)?
- client’s legal + commercial objectives
- evidence to confirm claim’s viability
- costs + possibility of ADR
- pre-action protocols
what are pre-action protocols?
steps parties must take before litigation, including identifying issues, sharing info, and attempting resolution
what happens if pre-action protocols are not followed?
party may face sanctions eg reduced cost recovery if successful in litigation
what’s the 1st formal step in litigation after gathering evidence?
C sends letter detailing claim –> D who MUST respond
what document starts a legal claim in court?
claim form, served on D along with particulars of claim
what must D do if they wish to contest a claim?
file + serve a defence to the court + C
what happens after the defence is filed?
court allocated case to a track, with higher value cases receiving more attention + resources
purpose of interim matters?
to ensure case progresses toward trial w/ proper prep + adherence to strict timetable
key steps parties must take during interim matters?
- disclose relevant docs (helpful or not)
- exchange evidence eg witness statements + expert reports
- scrutinise costs
can parties request specific court orders during interim matters?
yes, eg to compel an opponent to take a required step if they have not done so
what happens at trial?
judge hears evidence + resolves issues of liability + quantum (damages)
judge decides on costs and, if applicable, how much 1 party must pay the other
if a party is unhappy w the judgment, what options do they have?
they may appeal all or part of the trial judge’s decision
what happens if damages or costs are not paid after the trial?
winning party can apply to court to enforce the judgment.
court officials may seize + sell debtor’s belongings at public auction to pay the awarded amount.
