Factors influencing selection Flashcards

1
Q

Why might a lawyer not find it easy to give advice on ADR?

A

May feel they can litigate for the client themselves

Difficult to advise on ADR at a certain stage in litigation

ADR might appear an intrusion to litigation

May have concerns about having less control in ADR

Will have natural concerns about his fee income

Can be challenging to compare the potential advantages and disadvantages

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2
Q

But lawyers should feel more confident in giving advice because:

A

ADR options are not outside most lawyers’ experience”

AD involves similar elements to litigation

Disclosure = much of the key information is not available before issue of proceedings

ADR processes are flexible

Clients are likely to be attracted to lawyers who offer a service that includes ADR

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3
Q

What are the professional duties to give advice?

A

Code of Conduct: a barrister must act in the client’s best interests

To comply with the relevant CPR rules:

  • To comply with a pre-action protocol
  • To consider a stay for ADR
  • Where there is a possibility of a costs sanction
  • If the other side proposes ADR
  • To ensure that costs remain proportionate
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4
Q

When should advice be given on ADR?

A

Giving initial advice

Holding a conference or meeting

Writing an opinion

Reviewing a case prior to issuing proceedings

Reviewing a case prior to a court hearing

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5
Q

What are the main stages of litigation where ADR might most usefully be reviewed?

A

When the case first comes to the lawyers

Before issuing proceedings

At track allocation or at a CMC

After disclosure and inspection of evidence/exchange of witness statements

On consideration of expert evidence

When a Part 36 offer is made

Just before trial

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6
Q

What are the advantages in deciding about ADR while a relationship is positive?

A

Useful where informal or private resolution is desirable

Parties can agree on the form of ADR and a body/individual to act

Parties can agree the process and timescale, and how costs will be met

Parties can effectively draw up their own pre-action protocol

Can help ensure a constructive approach, so the focus is the resolution

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7
Q

How should an ADR clause be drafted?

A

An ADR clause must be drawn up carefully as it will be contractually enforceable

The terms must be sufficiently clear to be enforced

An agreement to use a named expert/provider/process is specific and enforceable

If too vague, the court will not enforce

However, the form of ADR selected can affect whether it will be enforced or not

E.g. negotiation and mediation are consensual and cannot be forced

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8
Q

What are the factors influencing ADR selection?

A
  • *Where jurisdiction is an issue**
  • ADR can help overcome jurisdictional issues
  • International arbitration or mediation are good
  • *Where a court order is necessary**
  • E.g. for a declaration or rights or an injunction
  • Even if ADR is used, a court order may be required to approve it

The relative cost of possible options

  • *How important expert knowledge is**
  • It may be expensive to litigate with expert evidence
  • In ADR, the parties can select an adjudicator with relevant expertise

Where confidentiality is important

How much control the client wants

  • *What the main objectives are of the client**
  • The range of remedies in court is well developed
  • Court orders are authoritative and can be enforced through court
  • But in litigation the judge only has the power to make such an orders to remedy the cause of action argued

Where a future relationship is important

  • *What is the relevance of the chances of success?**
  • A client who wants to ‘win’ may not want the compromise that comes with ADR

Whether the client wants his ‘day in court’

Whether neutral assistance would be valuable

The stage the case has reached

  • *Where an interim order may be important**
  • Judges have wide powers to grant interim orders
  • Non-adjudicative ADR is carried out by agreement and so no orders are available
  • The parties can give an arbitrator these powers, but they won’t have the same range/force
  • *Where orders relating to evidence may be needed**
  • There are court powers with regards to disclosure
  • An arbitrator will not have the powers of a judge to compel disclosure
  • With ADR, the parties can choose how much is disclosed

What the attitude of the court is

  • *Where enforcement may be an issue**
  • Likely to be less problem with enforcement in ADR, since the parties agreed to ADR and agreed to the settlement
  • But a court judgement will carry the full enforceability options of the court
  • Whereas an ADR agreement may need to be enforced with separate proceedings altogether
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9
Q

Where is ADR inappropriate?

A

A court judgement is needed as a precedent

Powers of the court to make interim orders are important

Client has a very strong case

Law is very complex

Facts are very complex

Many parties to the action

Great animosity between the parties

Quasi-criminal allegations

Matter of public policy is involved

C wants to make a public point of going to court

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10
Q

Potential concerns about ADR

A
  • ADR will undermine litigation
  • Proposing ADR shows a lack of faith in your case
  • ADR can undermine a lawyer’s control of a case
    • Can be much easier to deal with an arbitrator than a judge
  • ADR does not really save costs
    • Selecting the most appropriate form at the earliest reasonable opportunity can
  • ADR is a way of getting something for a weak case
    • Can be effective in making it clear to a litigant just how weak their case is
  • ADR involves too much pressure to settle
    • Always possible to say no and walk away
  • ADR is used as a delaying tactic
    • Robust case management will not tolerate delay
  • ADR is not robust
    • Arbitrators and mediators are like judges in being qualified lawyers with many years of experience
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11
Q

How can you secure agreement to ADR by an unwilling opposing party?

A

Remind the refusing party of the obligation to comply with CPR and the risk of sanction

Suggest specific benefits of ADR

Offer information about ADR options

Propose a simple ADR option

Address any concerns you think an opponent might have

Offer to pay reasonable ADR fees

Seek to persuade a judge to order a stay

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12
Q

What is the confidentiality like in ADR?

A

Privacy depends on three things:

  • Contractual agreement – a confidentiality clause in mediation and arbitration agreements
  • Legal processional privilege
  • Without prejudice communication

Problems may arise if:

  • ADR breaks down and there is an attempt to use something revealed in later litigation
  • There is a dispute about the terms agreed in settlement
  • There is an attempt to call anyone involved in the ADR as a witness later
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13
Q

When should ADR be used?

A
  • Should be when enough is known to evaluate the case, and where ADR can best save costs
  • Must have regard to considering ADR
  • Shouldn’t unreasonable refuse ADR, if proposed by the other side
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