Differnet Options of ADR Flashcards
If ADR fails, when will the judge be made aware of the ADR attempts?
After they have dealt with the issues of liability and awarded damages.
Give three reasons why a solicitor may advise a client does not use ADR.
1) If a specific award is needed (eg an induction);
2) If the opponent cannot be trusted to comply with an award;
3) If the other party is unlikely to co-operate with the process.
What happens if a client refuses to use ADR?
They may be penalised by the court unless they can provide a valid reason as to why they did not try alternative methods prior to litigation.
Can a court order parties to use ADR?
No. They can persuade but cannot force alternative methods.
List the factors a court may consider when deciding whether to impose a fine on a party for not trying ADR.
1) Nature of the dispute;
2) Merits of the Case;
3) The extent too which other settlement methods have been attempted;
4) Whether ADR costs were disproportionately high;
5) Whether delay in setting up ADR would have been prejudicial;
6) Whether ADR had a reasonable prospect of success.
Prior to court proceedings, what are solicitors required to confirm they have explained to their client?
1) The need to try and settle;
2) The options available;
3) The possibility of costs sanctions if they refuse to attempt to settle.
List the advantages of mediation.
1) Cost and Speed - quicker and cheaper than arbitration/litigation as its a quicker process;
2) Flexibility - parties choose the procedure to be followed/ no strict court rules.
3) Privacy - outside world is unaware of the outcome as it is conducted in private.
4) Preserving Business Relationship - informal setting makes it ideal if parties will continue to deal following the dispute.
5) Commercial Reality - third party helps find realistic workable outcome. avoids risk of going to court and uncertain decisions being imposed.
6) Ability to withdraw - clients can withdraw from mediation at any time.
List the disadvantages of mediation.
1) Ability to Withdraw - no one can be forced to use mediation. Especially frustrating for other party if this happens during the process.
2) Privacy - where client requires vindication (ie repair their public image) this will not happen as the outcome and discussion will be kept private.
3) Disclosure - no obligation for disclosure so parties may resolve dispute without knowing the full facts.
4) Not Binding - decision is to always binding. However if they agree then this will form a contract and one may be sued by the other for breach.
Explain why arbitration is seen as a substitute to litigation.
Once a part ha agreed to be subject to arbitration, they cannot take advantage of the normal court processes.
Name the two ways arbitration can arise.
1) Contracts - there may be a clause in a contract forcing parties to use arbitration to resolve disputes (particularly in commercial contracts).
2) Choice - parties may choose to use arbitration once a dispute arises and may choose their own arbitrator with relevant experience in the filed of the dispute (eg Shipping).
Briefly explain the procedure of arbitration.
- Dispute referred to independent arbitrator.
- The person/ trade body may be specified in the contract.
- Once third party reaches their decision, the parties are bound by it.
Is arbitration governed by statute?
Yes but only where the agreement to arbitrate is in writing.
List the main advantages of arbitration.
1) Quicker than court;
2) Less formal than court;
3) Decided by a third party with expert knowledge on that field;
4) Privacy;
5) Binding decisions;
6) Practical solutions (often more so than those made by courts)
List the main disadvantages of arbitration.
1) Dispute may not be investigated in the depth the courts would go to;
2) Certain remedies (eg injunctions) are not available.;
3) Not really more cost effective than going to court.
4) Binding decisions (so parties will not be able to challenge this should they disagree with the outcome).
What is litigation governed by?
The Civil Procedure Rules.
