RDOC Mock Flashcards
Which ONE OR MORE of Tom’s following statements about the mediation process
is/are CORRECT?
(i) Mediation is voluntary.
(ii) Mediation is binding on the parties.
(iii) Mediation is private.
i and iii
Tom is involved in a contractual dispute with Jerry. Jerry has invited Tom to enter into
negotiations in an attempt to resolve the dispute.
Which ONE of the following facts would you advise Tom would NOT constitute a
good reason for refusing to enter into negotiation at this stage?
[A] Tom does not yet have sufficient information to allow him to properly evaluate
the merits of his claim.
[B] The dispute involves the interpretation of a commonly used contractual clause
and Tom would like a binding decision on this point.
[C] Tom wishes to allege that Jerry has been fraudulent.
[D] Tom does not want to have to disclose all of his financial records.
ANSWER [D] there is no general duty of disclosure in negotiation so the
concern is irrelevant. All other options would be good reasons ADR Handbook
2.49 onwards.
Which ONE OR MORE of the following statements concerning Tomlin Orders is/are
CORRECT?
(i) An application to vary the terms of the provisions on the face of the order will
be governed by the CPR.
(ii) The terms in the schedule to the Tomlin order can never be varied by the court
as they have been agreed between the parties
(iii) Enforcement powers for the terms of the schedule are the same as for the
court order itself
(iv) A court may vary the terms of the schedule to a Tomlin Order if there has
been fraud.
C
Robert and Ahmed entered into negotiations in an attempt to resolve their dispute
without issuing proceedings. The negotiations were successful and they reached an
agreement on all of the issues in the dispute. Which ONE of the following would NOT
be an appropriate way of recording the terms of the settlement?
[A] Setting out the terms of the agreement as a formal written contract.
[B] Recording the terms of the agreement in the form of a Tomlin Order.
[C] The parties personally exchanging letters setting out the agreed terms of
settlement.
[D] The parties instructing their legal rep
ANSWER [B]: proceedings have not been issued. A Tomlin Order is an order
made in conjunction with a court order and so is only appropriate where a
settlement is intended to resolve court proceedings.
ADR Handbook 19.10
Which ONE of the following statements concerning the disclosure of documents in
ADR is CORRECT?
[A] Material disclosed in the course of litigation may not be used in a mediation
of the same dispute unless both parties agree.
[B] Parties engaging in ADR may have information provided by the other side as
pre-action protocols may provide for certain documents to be disclosed
before proceedings are commenced.
[C] In mediation the mediator may give directions setting out which documents
the parties must disclose.
[D] An arbitral tribunal has no power to determine the scope of disclosure in an
arbitration.
ANSWER [B] is correct - ADR Handbook 8.15 [D] is wrong – the tribunal can
decide all procedural and evidential matters that have been referred to it
including whether documents should be disclosed or produced and at what
stage (ADR Handbook 25.14). The mediator has no such powers so [C] is
wrong. [A] is also wrong – once material has been disclosed in litigation a
party can choose to use it in the mediation ADR Handbook 5.09.
See generally ADR handbook at 5.09 – 5.14
Gladluck Ltd issue proceedings against Unity Holdings Ltd for breach of contract
relating to an investment agreement claiming losses of £650,000. The parties agree
to enter into mediation and agree that each party should bear its own costs of that
mediation. The mediation is unsuccessful and Gladluck ultimately recover £10,000
following a contested trial. There were no offers made under CPR Part 36. Which
ONE of the following describes the view the court is most likely to take as to the costs
of the mediation?
[A] The parties have agreed that the costs of the mediation will be borne by
each party and the court will respect that.
[B] The award of £10,000 is so low compared with the amount of the claim
that neither party should be awarded their costs.
[C] Gladluck have won and the usual costs order that the loser pays the
winner’s costs should apply to the costs of the mediation.
[D] Gladluck should pay Unity’s costs of mediation as Gladluck’s
persistence in bringing the claim has resulted in little reward.
A
You act for Somapharm Limited (“Somapharm”), a bioresearch company, which has
developed a stem-cell technique for the treatment of multiple sclerosis. The treatment
only works if used in conjunction with a certain drug, which Somapharm also claims
to have developed. Curatex Limited (“Curatex”), a leading pharmaceutical company,
says that Somapharm’s drug infringes a patent held by Curatex to a drug, which is
currently undergoing clinical trials. Somapharm says that its new drug is chemically
similar to the one being trialled by Curatex, but functions in a totally different way.
The parties are anxious to obtain a final, binding resolution of this point so that they
can revise and implement their respective business plans. They agree that it is in
both their interests to avoid the release of commercially sensitive information
inevitable in litigation.
Which ONE of the following methods of ADR would you advise Somapharm to adopt? [A] Negotiation [B] Mediation [C] Expert Determination [D] Expert Evaluation
ANSWER [C] Expert determination is most appropriate for technical disputes
without disputed facts. The parties want a binding decision here, and this
method achieves that, because it is a determinative method, binding the parties
to the decision. This will give them the certainty they require for business
purposes, even if they are unhappy with the result. It is also quick. (see ADR
handbook 2.11)
[A] AND [D] are wrong because they provide no certain finality at the end of the
process
[B] is wrong because it is non-determinative and will therefore not bind the
parties.
Smartstart Ltd have entered into a contract with Glenrow Engineering for the supply
of equipment. The contract contains a clause that the parties will refer any disputes
arising in respect of performance of the contract to arbitration. Smartstart Ltd
commenced proceedings against Glenrow in the High Court alleging that the
equipment supplied by Glenrow was faulty. Glenrow wish to refer the matter to
arbitration.
Which ONE of the following statements concerning the High Court’s power to grant a
stay in order for the matter to be referred to arbitration is CORRECT?
[A] The Court may grant a stay but only if it considers that referring the matter to
arbitration would save costs and dispose fairly of the proceedings.
[B] The Court will not grant a stay unless both Smartstart and Glenrow wish the
matter to be referred to arbitration.
[C] The Court may refuse to grant a stay if Smartstart can show that the dispute
does not concern a matter that must be referred to arbitration under the
arbitration agreement
[D] The Court can only refuse to grant a stay if it considers that the arbitration
agreement is null and void.
ANSWER [C]: Section 9(1) and 9(4) Arbitration Act 1996; ADR Handbook 25.08 -
25.09.
A dispute has arisen between Gerald and Harriet concerning the erection of a fence
in Gerald’s garden. Harriet believes that (a) the fence is too high thereby interfering
with her right to light and (b) the fence has been erected on her land. Gerald disputes
this. Both parties agree to go to mediation. During the course of the mediation neither
party shows any sign of moving from their positions. Gerald says that he wishes to
leave as the mediation is pointless.
Which ONE OR MORE of the following is an appropriate course of action for the
mediator to take?
(i) The mediator should inform Gerald that if he wishes to leave he should
provide reasons for his early departure to the other side
(ii) The mediator should suggest to the parties that they go away and cool
down and that the mediation can continue the following day
(iii) The mediator should terminate the mediation as continuing the mediation is
unlikely to result in a settlement
(iv) The mediator should ask the parties to list the positive points they can take
forward from the mediation
III
Claudio’s small company has produced a violent computer game, Lethal Enforcers. A
distribution contract was signed with Fuzz International PLC (“Fuzz”), who have now
announced that they are no longer willing to distribute the game. They say that the
version of the game supplied to them for distribution is far more violent than the
version they contracted to distribute, and is contrary to Fuzz’s terms and conditions. It
is unclear which side has the stronger case, but Claudio has issued proceedings for
breach of contract. He has taken legal advice from Mark, a barrister, who tells him
that the court will expect Claudio and Fuzz to consider Alternative Dispute
Resolution. Claudio is unimpressed by this, and seeks a second opinion from you.
He refers you to four things which Mark told him, which are set out below.
Which ONE of Mark’s statements below is WRONG?
[A] The strength of Claudio’s case may be a reason which might justify him refusing
to enter ADR.
[B] The court can compel Fuzz and Claudio to enter ADR.
[C] The reasonableness of a refusal to enter ADR may vary according to the time at
which ADR is considered.
[D] The value of Claudio’s claim is a factor which may sometimes be used to justify
a refusal to enter ADR.
ANSWER [B] the statement is wrong. Halsey makes clear that the court can
only recommend ADR; it cannot compel the parties (ADR Handbook 9.06). All
the other statements are correct and derive from Halsey (ADR Handbook 11.08-
11.22).
Chandler Ltd has commenced proceedings against Wheelhouse Ltd. On their
directions questionnaire both parties requested a stay for a period of 1 month whilst
they entered into mediation. The court agreed and made an order accordingly.
One mediation meeting has taken place, but there have been delays and the parties
wish to extend the stay by a period of 1 month.
Which ONE of the following is correct?
[A] The court may extend the stay but only for 1 month more.
[B] The court may extend the stay for such specified period as it thinks fit.
[C] The court may not extend the stay.
[D] Before granting a stay the court must ask the parties to attend a hearing to
ascertain why the initial stay was not adequate.
ANSWER [B] – there is no fetter on the court’s ability to grant or extend a stay
in the proceedings for the purpose of mediation. Provided both parties wish to
continue to attempt to resolve the matter through mediation the court would be
very unlikely to try to get them back into litigation. Note that [D] is wrong
because whilst the court has the power to require the parties to explain their
position it is very unlikely to do so and certainly does not have to do so ADR
Handbook 9.24-9.25.
Eden Botanicals Ltd have recently concluded a mediation with Hawaii Coconut
Products Ltd. The dispute centred on the provision of inferior quality coconut oil.
Following the mediation both Eden Botanicals and Hawaii have agreed that they wish
to waive the without prejudice nature of their discussions during the mediation. The
mediator objects to this.
Which ONE of the following statements best describes the mediator’s position?
[A] The mediator should write to Eden and Hawaii to insist that the without
prejudice rule is maintained. To waive the without prejudice rule all parties
must agree and the mediator was a party to the mediation.
[B] The without prejudice rule is for Eden and Hawaii alone to waive and therefore
the mediator should not interfere.
[C] The mediator cannot insist that the parties do not waive the without prejudice
rule as it is for Eden and Hawaii alone to waive. He can, however, refuse to
give evidence about such communications.
[D] The mediator may apply to court seeking to rely on the express terms of the
mediation agreement
ANSWER [B] ADR Handbook 13.63
Arthur is unhappy about the service provided by the supplier of the electricity to his
house. He has been in dispute with the supplier for some time but has not made a
formal complaint. He has just been told that there is an ombudsman scheme in
operation which governs the supply of electricity. Which ONE of the following is
CORRECT?
[A] Arthur must report the matter to his Member of Parliament who will refer it to
the ombudsman on Arthur’s behalf.
[B] Arthur can refer the complaint to the ombudsman immediately.
[C] The ombudsman is appointed by the electricity supply company.
[D] Arthur should go through the supplier’s complaints procedure before referring
his dispute to the ombudsmn.
ANSWER [D] ADR handbook 23.18
Which ONE OR MORE of the following statements about pre-action costs and
conduct is/are CORRECT?
(i) Where a settlement is reached before the issue of proceedings the court will
normally have no power to make a costs order.
(ii) Where pre-action costs are incurred and proceedings are subsequently issued
then the court’s power to make an order as to costs will not include a power to
make an order in relation to the pre-action costs.
(iii) Where pre-action costs are incurred and proceedings are subsequently issued
then the court’s power to make an order as to costs will include a power to
make an order in relation to the pre-action costs.
(iv) The court can take into account the pre-action conduct of the parties
I, III, IV
In which ONE of the following circumstances will the court NOT look at relevant
communications between parties with a view to settling a dispute?
[A] Where the communications make unrealistic offers of settlement.
[B] Where there is an issue before the court as to the proper construction of the
terms of a settlement.
[C] Where there is an allegation that the settlement should be set aside on the
grounds of undue influence.
[D] Where there is a dispute before the court as to whether a settlement has been
reached.
ANSWER [A] ADR Handbook 5.24-5.25.
