FLK1 DR: different options for dispute resolution Flashcards
public perception of litigation?
slow + expensive
where are civil litigation disputes more likely to be resolved?
in lawyers’ offices or virtual meetings
purpose of the £1B reform programme in the courts’ system?
promote tech in resolving disputes
alternatives to court proceedings?
arbitration, mediation, negotiation
when should ADR be considerd?
at 1st interview w/ client
what does ADR stand for?
alternative dispute resolution
what is the nature of ADR?
settling disputes outside traditional litigation
key feature of mediation in ADR?
assistance from independent 3rd party
what does ‘without prejudice’ mean in ADR?
discussions can’t be used in court later
how does arbitration differ from litigation?
arbitration: voluntary
litigation: not voluntary
what happens if a party refuses to engage in ADR?
sanctions may be imposed by court
what must a solicitor discuss w a client re ADR?
the availability + benefits of ADR
what is required if a party does not engage in ADR?
witness statement giving reasons
what factors does the court consider for costs penalties in ADR?
nature of dispute, merits + attempts made
what did the case of churchill v merthyr tydfil cbc establish?
courts can ORDER parties to engage in ADR
what must solicitors confirm to their clients re ADR?
they have explained the need to settle
why is the independence of 3rd party important in ADR?
it encourages open discussions b/w parties
mediator’s role in mediation?
to facilitate discussions b/w parties
some advantages of mediation?
cost-effective
flexible
private
disadvantage of mediation re disclosure?
risk of resolving w/o all facts
why might privacy be a disadvantage in mediation?
client may need public vindication
key principle re participation in mediation?
no one can be forced to engage
what role does negotiation play in ADR?
it is routinely used to settle claims
why is confidentiality important in ADR?
it encourages honest discussions among parties
consequences for not following ADR proposals?
courts may impose subsequent costs orders
typical process of mediation?
independent 3rd party facilitates discussions
what can happen if a party refuses to engage in ADR?
they may face costs sanctions
in a mediation session, what key risk is associated with the disclosure of info?
parties may resolve disputes w/o all facts
what do many business clients prefer over a potentially more accurate outcome?
a quick decision, even if inaccurate
disadvantage of mediation related to privacy?
clients lose public vindication opportunities
can parties be forced to engage in mediation?
no, they cannot be forced
what happens if a party withdraws from mediation?
litigation may be necessary
how does the ability to withdraw from mediation serve as both an advantage and disadvantage?
one party may be pleased
the other unhappy
is an agreement reached in mediation automatically binding?
no, not automatically binding
what can parties do if 1 does not fulfil the mediation agreement?
they may sue for breach of contract
advantages and disadvantages of mediation over litigation?
advantages:
1. involvement of independent 3rd party
2. cost-effective
3. speedy resolution
4. flexible process
5. preserves business relationships
6. commercial reality consideration
7. privacy maintained
disadvantages:
1. limited disclosure of facts
2. enforcement: not automatic
what is arbitration in the context of DR?
a parallel process to litigation
what must parties do if bound by arbitration clause?
submit to arbitration for disputes
what is the Arbitration Act (AA) 1996’s role in arbitration?
governs arbitration procedures
how is the arbitration process characterised?
less formal than court procedures
key advantage of arbitration compared to litigation?
decisions are made by impartial experts
why is confidentiality important in arbitration?
it preserves business relationships
significant disadvantage of arbitration?
limited rights of appeal on decisions
what can the winning party in arbitration do under AA 1996?
apply to enforce the arbitration award
What are the advantages and disadvantages of arbitration over litigation?
Advantages:
Cost-effective
Speedier resolution
Less formal procedures
Expert involvement
Preserves business relationships
Privacy maintained
binding decisions
Disadvantages:
Limited disclosure
Some remedies unavailable
what must C do re dispute with travel agent?
refer her dispute to the ABTA (travel association) arbitration
what does C agree to after D and C have a dispute re failing a drugs test?
submit to arbitration at CAS (court of arbitration for sports)
why would a company choose mediation?
to maintain their business relationship with another co
why would ADR not be appropriate for someone?
when they need an injunction eg for legal nuisance
what happens if parties proceed with litigation?
they can’t withdraw w/o costs
what governs civil litigation in E&W?
Civil Procedure Rules (CPR) 1998
how many parts are in the CPR?
89 Parts
aim of CPR?
provide a user-friendly dispute resolution system
who is referred to as the C in civil proceedings?
person issuing the claim
what role do judges play in civil courts?
they handle interim applications + trials
role of court managers?
they oversee the court office operations
what do ushers do in court?
assist in the smooth running of proceedings
functions of high court enforcement officers + bailiffs?
serve docs + enforce court orders
what are the 5 stages of litigation?
- pre-commencement of proceedings
- issuing claims
- interim matters/case management
- trial
- post-trial matters
what is the starting point for issuing proceedings in civil litigation?
the client
1st step in understanding a civil claim?
have an overview of the overall picture
starting point before issuing proceedings in a civil claim?
client’s objectives
what must be gathered to confirm the viability of a claim?
evidence
what should be addressed re costs before starting litigation?
costs should be at the forefront of the client’s mind
pre-action protocols: what do they govern?
steps to take before commencing court action
what happens if a party fails to follow a pre-action protocol?
they may incur a sanction
what should a potential C send to the proposed D?
letter detailing the claim
what must D do if they wish to contest the claim?
file a defence at the court
how does the court allocate a claim?
by assigning it to a track
what are the 4 types of tracks based on claim value?
small claims
fast track
intermediate track
multi-track
maximum value for a small claims track?
£10,000
what is the trial process focused on?
hearing evidence + making a decision
what can a party do if they are unhappy w the judgment?
decide to appeal the decision
what must party do if damages or costs are not paid?
apply to HC to enforce judgment
what is mediation?
a neutral 3rd party helps resolve disputes
what is arbitration?
a decision decided by an arbitrator or panel
what do the CPR rules dictate?
procedure that must be followed by the courts
main civil courts in the UK?
County Court +
High Court
significance of CPR?
regularly amended + updated
divided into parts w Practice Directions
what should a solicitor advise a client re ADR?
engage in ADR to avoid sanctions
what is the outcome of a successful appeal?
the original judgment may be overturned
what is the significance of the letter sent by the C to the D?
it details the claim before litigation
what is the role of the court in managing interim matters?
to ensure the case progresses towards trial
what must parties disclose during interim matters?
relevant documents in their possession
what is the purpose of directions given by the court?
to list steps for trial preparation
outcome of successful civil claim?
C receives damages or costs
what should parties do if they can’t resolve their dispute through ADR?
consider proceeding to litigation
purpose of the letter of claim?
inform D of the claim details
is litigation voluntary?
no, it is not
what happens if a party does not comply w court directions?
they may face sanctions or penalties
role of judge in determining costs?
to decide if any party pays the other’s costs
significance of the trial outcome?
resolves issues of liability + damages (quantum)
what must parties do after a judgment is given?
comply with judgment or enforce it
what should a solicitor consider when advising on ADR?
cost, speed, and relationship preservation
what is the significance of the client’s objectives in litigation?
they guide the strategy + approach
purpose of letter of claim in civil litigation?
to inform the D of the claim details
why is confidentiality important in ADR?
it encourages honest discussions among parties
