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SQE1 FLK1 + FLK2 > FLK1 DR: different options for dispute resolution > Flashcards

FLK1 DR: different options for dispute resolution Flashcards

1
Q

public perception of litigation?

A

slow + expensive

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2
Q

where are civil litigation disputes more likely to be resolved?

A

in lawyers’ offices or virtual meetings

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3
Q

purpose of the £1B reform programme in the courts’ system?

A

promote tech in resolving disputes

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4
Q

alternatives to court proceedings?

A

arbitration, mediation, negotiation

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5
Q

when should ADR be considerd?

A

at 1st interview w/ client

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6
Q

what does ADR stand for?

A

alternative dispute resolution

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7
Q

what is the nature of ADR?

A

settling disputes outside traditional litigation

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8
Q

key feature of mediation in ADR?

A

assistance from independent 3rd party

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9
Q

what does ‘without prejudice’ mean in ADR?

A

discussions can’t be used in court later

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10
Q

how does arbitration differ from litigation?

A

arbitration: voluntary
litigation: not voluntary

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11
Q

what happens if a party refuses to engage in ADR?

A

sanctions may be imposed by court

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12
Q

what must a solicitor discuss w a client re ADR?

A

the availability + benefits of ADR

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13
Q

what is required if a party does not engage in ADR?

A

witness statement giving reasons

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14
Q

what factors does the court consider for costs penalties in ADR?

A

nature of dispute, merits + attempts made

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15
Q

what did the case of churchill v merthyr tydfil cbc establish?

A

courts can ORDER parties to engage in ADR

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16
Q

what must solicitors confirm to their clients re ADR?

A

they have explained the need to settle

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17
Q

why is the independence of 3rd party important in ADR?

A

it encourages open discussions b/w parties

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18
Q

mediator’s role in mediation?

A

to facilitate discussions b/w parties

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19
Q

some advantages of mediation?

A

cost-effective
flexible
private

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20
Q

disadvantage of mediation re disclosure?

A

risk of resolving w/o all facts

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21
Q

why might privacy be a disadvantage in mediation?

A

client may need public vindication

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22
Q

key principle re participation in mediation?

A

no one can be forced to engage

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23
Q

what role does negotiation play in ADR?

A

it is routinely used to settle claims

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24
Q

why is confidentiality important in ADR?

A

it encourages honest discussions among parties

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25
Q

consequences for not following ADR proposals?

A

courts may impose subsequent costs orders

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26
Q

typical process of mediation?

A

independent 3rd party facilitates discussions

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27
Q

what can happen if a party refuses to engage in ADR?

A

they may face costs sanctions

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28
Q

in a mediation session, what key risk is associated with the disclosure of info?

A

parties may resolve disputes w/o all facts

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29
Q

what do many business clients prefer over a potentially more accurate outcome?

A

a quick decision, even if inaccurate

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30
Q

disadvantage of mediation related to privacy?

A

clients lose public vindication opportunities

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31
Q

can parties be forced to engage in mediation?

A

no, they cannot be forced

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32
Q

what happens if a party withdraws from mediation?

A

litigation may be necessary

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33
Q

how does the ability to withdraw from mediation serve as both an advantage and disadvantage?

A

one party may be pleased
the other unhappy

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34
Q

is an agreement reached in mediation automatically binding?

A

no, not automatically binding

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35
Q

what can parties do if 1 does not fulfil the mediation agreement?

A

they may sue for breach of contract

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36
Q

advantages and disadvantages of mediation over litigation?

A

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

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37
Q

what is arbitration in the context of DR?

A

a parallel process to litigation

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38
Q

what must parties do if bound by arbitration clause?

A

submit to arbitration for disputes

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39
Q

what is the Arbitration Act (AA) 1996’s role in arbitration?

A

governs arbitration procedures

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40
Q

how is the arbitration process characterised?

A

less formal than court procedures

41
Q

key advantage of arbitration compared to litigation?

A

decisions are made by impartial experts

42
Q

why is confidentiality important in arbitration?

A

it preserves business relationships

43
Q

significant disadvantage of arbitration?

A

limited rights of appeal on decisions

44
Q

what can the winning party in arbitration do under AA 1996?

A

apply to enforce the arbitration award

45
Q

What are the advantages and disadvantages of arbitration over litigation?

A

Advantages:
Cost-effective
Speedier resolution
Less formal procedures
Expert involvement
Preserves business relationships
Privacy maintained
binding decisions

Disadvantages:
Limited disclosure
Some remedies unavailable

46
Q

what must C do re dispute with travel agent?

A

refer her dispute to the ABTA (travel association) arbitration

47
Q

what does C agree to after D and C have a dispute re failing a drugs test?

A

submit to arbitration at CAS (court of arbitration for sports)

48
Q

why would a company choose mediation?

A

to maintain their business relationship with another co

49
Q

why would ADR not be appropriate for someone?

A

when they need an injunction eg for legal nuisance

50
Q

what happens if parties proceed with litigation?

A

they can’t withdraw w/o costs

51
Q

what governs civil litigation in E&W?

A

Civil Procedure Rules (CPR) 1998

52
Q

how many parts are in the CPR?

A

89 Parts

53
Q

aim of CPR?

A

provide a user-friendly dispute resolution system

54
Q

who is referred to as the C in civil proceedings?

A

person issuing the claim

55
Q

what role do judges play in civil courts?

A

they handle interim applications + trials

56
Q

role of court managers?

A

they oversee the court office operations

57
Q

what do ushers do in court?

A

assist in the smooth running of proceedings

58
Q

functions of high court enforcement officers + bailiffs?

A

serve docs + enforce court orders

59
Q

what are the 5 stages of litigation?

A
  1. pre-commencement of proceedings
  2. issuing claims
  3. interim matters/case management
  4. trial
  5. post-trial matters
60
Q

what is the starting point for issuing proceedings in civil litigation?

A

the client

61
Q

1st step in understanding a civil claim?

A

have an overview of the overall picture

62
Q

starting point before issuing proceedings in a civil claim?

A

client’s objectives

63
Q

what must be gathered to confirm the viability of a claim?

A

evidence

64
Q

what should be addressed re costs before starting litigation?

A

costs should be at the forefront of the client’s mind

65
Q

pre-action protocols: what do they govern?

A

steps to take before commencing court action

66
Q

what happens if a party fails to follow a pre-action protocol?

A

they may incur a sanction

67
Q

what should a potential C send to the proposed D?

A

letter detailing the claim

68
Q

what must D do if they wish to contest the claim?

A

file a defence at the court

69
Q

how does the court allocate a claim?

A

by assigning it to a track

70
Q

what are the 4 types of tracks based on claim value?

A

small claims

fast track

intermediate track

multi-track

71
Q

maximum value for a small claims track?

A

£10,000

72
Q

what is the trial process focused on?

A

hearing evidence + making a decision

73
Q

what can a party do if they are unhappy w the judgment?

A

decide to appeal the decision

74
Q

what must party do if damages or costs are not paid?

A

apply to HC to enforce judgment

75
Q

what is mediation?

A

a neutral 3rd party helps resolve disputes

76
Q

what is arbitration?

A

a decision decided by an arbitrator or panel

77
Q

what do the CPR rules dictate?

A

procedure that must be followed by the courts

78
Q

main civil courts in the UK?

A

County Court +
High Court

79
Q

significance of CPR?

A

regularly amended + updated

divided into parts w Practice Directions

80
Q

what should a solicitor advise a client re ADR?

A

engage in ADR to avoid sanctions

81
Q

what is the outcome of a successful appeal?

A

the original judgment may be overturned

82
Q

what is the significance of the letter sent by the C to the D?

A

it details the claim before litigation

83
Q

what is the role of the court in managing interim matters?

A

to ensure the case progresses towards trial

84
Q

what must parties disclose during interim matters?

A

relevant documents in their possession

85
Q

what is the purpose of directions given by the court?

A

to list steps for trial preparation

86
Q

outcome of successful civil claim?

A

C receives damages or costs

87
Q

what should parties do if they can’t resolve their dispute through ADR?

A

consider proceeding to litigation

88
Q

purpose of the letter of claim?

A

inform D of the claim details

89
Q

is litigation voluntary?

A

no, it is not

90
Q

what happens if a party does not comply w court directions?

A

they may face sanctions or penalties

91
Q

role of judge in determining costs?

A

to decide if any party pays the other’s costs

92
Q

significance of the trial outcome?

A

resolves issues of liability + damages (quantum)

93
Q

what must parties do after a judgment is given?

A

comply with judgment or enforce it

94
Q

what should a solicitor consider when advising on ADR?

A

cost, speed, and relationship preservation

95
Q

what is the significance of the client’s objectives in litigation?

A

they guide the strategy + approach

96
Q

purpose of letter of claim in civil litigation?

A

to inform the D of the claim details

97
Q

why is confidentiality important in ADR?

A

it encourages honest discussions among parties

98
Q
A

SQE1 FLK1 + FLK2 (3 decks)

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