Dispute Resolution Flashcards
What are the different options for dispute resolution?
Mediation
Arbitration
Litigation
What is Alternative Dispute Resolution?
A collective term referring to any means of settling disputes outside of the traditional litigation process.
When is ADR not appropriate?
When it is inappropriate to do so (i.e. injuction is required)
The other party is unlikely to co-operate
The other party cannot be trusted to comply with an award
What happens when a party does not engage with ADR?
Any party not engaging must serve a witness statement giving reasons within 21 days. The statement should not be shown to a judge unless questions of costs arise.
Cost penalties from the court can also arise.
Courts can now also stay proceedings or order for the parties to engage in a non-court based DR process.
What should solicitors advise their client about ADR?
They need to try and settle
Give them all available options
Advise on the possible costs sanctions if they fail to settle
What experience should the independent third party have during an ADR process?
Appropriate industry or commercial knowledge required to understand the dispute.
What is mediation?
Where parties will send a mediator (the independent third party) written statements from both parties and the mediator will then discuss the case on a ‘without prejudice’ basis.
What are the advantages of mediation?
Involvement of an independent third party
Quick at a low cost
Private
Flexible
Preserves business relationships
Ability to withdraw
What are the disadvantages of mediation?
Limited disclosure
Enforcement is not automatic
What is arbitration?
A ‘parallel’ dispute resolution system where a panel of arbitrators would make a decision.
It is governed by statute (Arbitration Act 1996).
How can arbitration arise?
In two ways:
The parties may be contractually bound and it may be contained as a clause within their business contracts.
The parties may agree to arbitration once a dispute has arisen and may choose their own arbitrator with the relevant expertise.
What are the advantages of arbitration?
Likely quicker than court proceedings and may be cheaper
The procedures are less formal
The decision is made by an impartial third party with expertise
Private and confidential
Solutions are more practical than what a court could offer
Is arbitration binding or non-binding?
Binding (as opposed to mediation)
What are the disadvantages of arbitration?
The dispute may not receive the depth of investigation it would receive in the courts
Certain remedies such as injunctions are not available.
How can a party enforce an arbitration decision?
Once a decision is made, the winning party to an arbitration can apply to the High Court for permission to enforce the award as if it was a judgment.
What cost liabilities there once court proceedings have commenced?
Neither party can withdraw without paying the opponent’s costs.