METHODS OF DISPUTE RESOLUTION

Question 1

negotiation during LITIGATION

Answer 1

1. Negotiation
   (1) Negotiation can happen at any time in a case, pre- or post litigation.
   (2) Any conversations or correspondence that form part of the negotiation process can be ‘without prejudice’, meaning that they cannot be relied on by the other party or referred to in court.
2. Round-Table Discussions
   Negotiations may take place under a more formal setting in the form of a round-table meeting (sometimes called a joint settlement meeting) where the parties and their representatives (solicitors and barristers) meet to try to agree a settlement. These are usually held post-proceedings and following disclosure of all witness statements and evidence so the parties have a better idea of the strengths and weaknesses of the claim.

Question 2

Duties of Litigators to ConsiderADR

Answer 2

The Court of Appeal has directed that all members of the
legal profession who conduct litigation should routinely con-
sider with their clients whether their disputes are suitable for Alternative Dispute Resolution, and the Civil Procedure Rules encourage parties to settle disputes at an early stage without proceeding to costly litigation.(litigation as last resort)

Question 3

ADR Considered Throughout Proceedings

Answer 3

At various stages of the court process, the court is likely to direct the parties back to considering the possibility of Alter-native Dispute Resolution.
Exam Tip
Remember that litigation and ADR are **not mutually exclusive **and even once proceedings have commenced parties should still be actively considering whether ADR would be appropriate. If parties are concerned there is not enough time to comply with directions and undertake ADR, the court will often suspend the court timeta-ble (formally known as granting a stay) to enable ADR to take place.

Question 4

Unreasonable Refusal to Engage in ADR

Answer 4

The courts have made it clear that it is unacceptable and unreasonable for a party to fail to respond to a re**quest for Alternative Dispute Resolution. If the receiving party considers ADR inappropriate, they must set out their reasons, failing which the court has discretion to penalise them in respect of the legal costs that they can recover, regardless of whether their claim is successful.

Exam Tip
As a general principle, whenever a party ignores the Civil Procedure Rules or specifc orders of the court, the most common penalty a court imposes is an order for legal costs, generally by making them liable for the legal costs the other side incurs as a result of their not follow-ing the rule or order.

Question 5

PRINCIPAL METHODS OFADR

Answer 5

1. arbitration
   2.mediation

Question 6

arbitration

Answer 6

1. Like litigation, arbitration is a more formal procedure than negotiation and leads to a final and binding decision capable of enforcement in the courts if not paid.
2. As arbitration is a contractual process, once parties agree to arbitrate they must follow this process unless both parties agree to use another method of dispute resolution.

Question 7

4

Procedure in Arbitration

Answer 7

1. After agreeing to arbitrate, the parties appoint an arbitrator, often a solicitor, barrister, or another professional such as an architect or surveyor in a construction case.
2. The arbitrator
   will discuss the case individually with each party and produce a timetable for resolution.
3. The strict rules of evidence used in court do not apply
4. After consideration of all the evidence, the arbitrator will make a final decision, known as a final award. An arbitration award is** legally binding** on both sides and enforceable in the courts.

Question 8

7

Mediation

Answer 8

1. Mediation is an** informal, confidential, and voluntary** process in which a neutral third party assists disputing parties in reaching a resolution.
2. A mediator does not adjudicate on the dispute but instead** assists **the parties in reaching a resolution themselves. Key features of mediation include:
3. It is completely confidential and ‘without prejudice’; that is, information disclosed as part of the process cannot be referred to if the mediation fails and the case proceeds through litigation to trial;
4. The parties are in control and can walk away at any time;
5. Strict rules of evidence do not apply; the parties are unbounded in their presentation of evidence (for example, they can bring up hurt feelings,distrust, and so forth);
6. The mediator is entirely neutral, with no personal interest in the outcome; and
7. Mediation is non-binding until a final written agreement has been signed.

Question 9

3

mediation in practice

Answer 9

1. The parties appoint a neutral mediator, either an agreed third party or an individual selected from a panel.
2. Mediation can take place at any time, before or during litigation
3. If the parties are able to reach agreement, the mediator will draw up the settlement agree-ment, which will become binding once signed.