DR 1 Flashcards
What are the four primary processes for resolving disputes in the UK?
- Litigation * Negotiation* Arbitration* Mediation
What is litigation?
Taking legal action through the court system, with formal rules of evidence; a judge will resolve the parties’ dispute
What is negotiation?
Informal discussions between the parties that are ‘without prejudice’ to resolve their dispute which may take place at any time. The parties resolve their dispute. This includes round-table discussions in which the parties and their representatives meet to try to settle, usually after disclosure of all witness statements and evidence
When can negotiation happen?
At any time in a case, pre or post-litigation
What does the fact negotiations are without prejudice mean?
Conversations cannot be relied on by parties or referred to in courts
What is arbitration?
A semi-formal procedure in which a neutral third party (the arbitrator) hears evidence and resolves the parties’ dispute through a final award.* Strict rules of evidence do not apply* The arbitrator’s decision (the final award) is legally binding on both sides* An arbitral award is enforceable in England and Wales if the court gives judgment in terms of the award
What is mediation?
Informal, confidential, and voluntary process in which a neutral third party assists the parties in reaching their own resolution
What are the three key features of mediation?
- Parties can walk away at any time2. Strict rules of evidence do not apply (can bring up hurt feelings)3. Mediation is non-binding until final written agreement is signed
What is the overriding objective?
Courts have a duty to ensure that cases are resolved in a proportionate, expeditious, and fair manner (the overriding objective), and * The Court of Appeal has directed all members of the legal profession to encourage clients to attempt ADR (though it is not required). * ADR should be considered throughout the proceedings
Can a court order parties to consider alternative dispute resolution?
No
If a party considers ADR inappropriate, but does not set out their reasons, what can the court do?
Penalise the party in respect of legal costs that they can recover, or an order making them pay costs incurred by the other side as a result of the conductThis applies to failure to follow Civ Pro rules generally
If a contract between two parties has an ADR clause, what will the courts do if one of the parties issues proceedings first?
The court will stay the proceedings
