Intro to DR

Question 1

Litigation

Answer 1

formal process by which disputes are resolved through the courts. At the conclusion, trial is held and a judge makes their conclusions

Question 2

mediation

Answer 2

agreed instruction to third party (mediator) to aid negotiations in the aim of reaching settlement (not legally binding)

Question 3

arbitration

Answer 3

appointment of arbitrator/panel of arbitrators by disputing parties that decide on the conclusion. Legally binding and not entitles to seek a judgement on the matter from the court

Question 4

adverse court orders

Answer 4

court order that requires a party to proceedings to pay some or all of the other party’s costs associated with the legal action

Question 5

How is reasonableness assessed when refusing ADR?

Answer 5

Under Halsey v Milton Keynes General NHS Trust:
- the nature of the dispute
- the merits of the case
- the extent to which other settlement methods have been attempted whether the costs of the ADR would be disproportionately high
- whether any delay in setting up and attending the ADR would have been prejudicial
- whether the ADR had a reasonable prospect of success

Question 6

What sanctions can the court impose on unreasonable ADR?

Answer 6

Adverse court orders
- depriving a party of being awarded their costs
- order the party to pay some or all of the other side’s costs as well as their own
- ordering a higher rate of interest to be paid on damages awarded by the court
- depriving a party of interest on damages awarded by the court

Question 7

Mediation: Advantages

Answer 7

• Flexible - no set process so can be made to suit the circumstances
• Cost-effective
• Speedy
• Confidential
• Preserves relationships
• Settlement terms can be more creative - court can only award a remedy that has been claimed and is legally within their discretion
• Increases likelihood of a later negotiated settlement even if unsuccessful - parties understand the other’s positions
• Parties can return to court if a settlement is not reached

Question 8

Mediation: Disadvantages

Answer 8

• Enforceability of verbal agreement
• All parties must agree to a proposed resolution
• Can increase costs if parties are unwilling to cooperate
• Parties are not required to disclose documentation
• Ability to withdraw
• No ‘day in court’

Question 9

Arbitration: Advantages

Answer 9

• Expertise of arbitrator
• Speed - faster than court and parties can put a time limit
• Flexibility
• Confidential
• Preserves relationships
• Binding decisions
• Enforcement - under s6 Arbitration Act 1996 a part can apply to HC to enforce a final arbitral award in the same way as a party is free to return to the court to enforce a judgment

Question 10

Arbitration: Disadvantages

Answer 10

• Powers are more limited - requires a degree of good faith as the arbitrator’s powers when dealing with obstructive or awkward parties is limited
• Cost advantage over litigation is potentially small - not a lot less expensive that court
• Limited scope to challenge a decision - can only challenge if serious irregularity (app must be made within 28 days of the award being made)
• Disclosure and remedies available - remedies slightly more limited than in court (can’t impose injunctions)

Question 11

Litigation: Advantages

Answer 11

• strict rules that govern the behaviours of parties
• disclosure
• outcome may be easier to predict of there are similar previously decided cases
• binding decision
• appeal
• enforcement

Question 12

Litigation: Disadvantages

Answer 12

• Time-consuming
• Complex to conduct without legal representation
• Costly
• Adversarial

Question 13

What is the litigation process?

Answer 13

1. Pre-court involvement/pre-action conduct
2. Commencing and defending formal proceedings
3. Case management by the court
4. Trial
5. Post-trial