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RODOC Flashcards

1
Q

Is Arbitration an adjudicative or a non-adjudicative form of ADR?

A

Adjudicative

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2
Q

Define arbitration [25.01]

A

An arbitration is an adjudicative process in which an impartial arbitrator considers both sides of a dispute and makes a decision based on evidence raised by the parties.

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3
Q

Name 5 benefits of arbitration

A
  1. It leads to certainty of outcome for the parties
  2. It is private, unlike a trial in open court
  3. The aspects of arbitration can be tailored to the needs of a specific dispute
  4. The process can be structured
  5. The process can take the form of written submissions rather than a hearing
  6. The process can be simple without formal rules of evidence
  7. The parties can select an arbitrator with appropriate experience
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4
Q

Name 5 disbenefits or arbitration

A

1 Arbitration is not necessarily a cost saving option if a process similar to a trial is used
2 The parties leave the final decision to a third party and will be bound by it
3 Arbitration processes cannot easily deal with a party who fails to cooperate as an arbitrator will not have the same power as a judge
4 The parties must consent
5 The arbitrator needs to be selected with care and may be difficult to find
6. Arbitration may not be quick

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5
Q

Adjudication involves a neutral third party with specialist knowledge or experience acting under an agreed process and reaching a decision on a dispite or on specified issues.

True or false?

[2.08]

A

True

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6
Q

Parties may show an advance commitment to ADR by including an ADR clause in their ____

A

contract

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7
Q

Clauses providing for pre selection of ADR have proved effective in relation to adjudicative processes, expert determination and mediation but not where there was only a general expression of intention to use ADR. True or false? [3.05]

A

True

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8
Q

Some non adjudicative ADR is most effective if it is incorporated into a case at its outset. Give an example.

[3.06]

A

Early neutral evaluation

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9
Q

ADR may assist in clarifying issues even if does not lead to a final settlement. True or false?

A

True

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10
Q

What are the drawbacks of using ADR too early in a case? [3.07]

A

Time and money may be wasted
An unsuccessful ADR process may exacerbate the differences between the parties
The ADR process may be used tactically by one party rather than as a genuine attempt to settle

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11
Q

When will a directions questionnaire be required to be completed in a multi track case?

A

After the defences have been filed

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12
Q

In multi track cases, what do directions questionnaires contain?

A

Specific questions about the use of ADR

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13
Q

A judge may give case management instructions which include a direction in relation to the use of ADR. True or false?

A

True

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14
Q

Complete the standard ADR direction in a PD 29.10(4a) order

A

The parties shall by [date] consider whether the case is capable of resolution by ADR. If any party considers that the case is unsuitable for resolution by ADR, that party shall be prepared to ______________________, should the judge consider that such means of resolution were appropriate, when he is considering the appropriate costs order to make.

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15
Q

Name some interim orders which may be used by the Court to assist ADR [3.15]

A
  1. The Court may order that a party’s legal representative attend Court. This may be used to support ADR.
  2. On an application for an interim order the COurt may give directions to support the use of ADR
  3. The Court can order trial of a preliminary issue if the rest of the case might settle
  4. A Court can give specific guidance on the progress of a case, with specific warning that costs penalties may follow if guidance is not follow
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16
Q

It may be reasonable for a party to refuse to agree to use ADR until after a key Court decision, for example the consideration of an application to strike out the other side’s case.

True or false?

A

True [3.16]

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17
Q

It is reasonable to refuse ADR until all the stages of litigation up to and including the exchange of witness statements are completed even if steps could have been taken to facilitate the earlier use of ADR

A

False [3.16]

18
Q

ADR may not be used after a judgment to avoid an appeal. True or false?

A

False [3.20]

19
Q

Parties will never be penalised in costs for rejecting the use of ADR after a judgment and prior to an appeal. True or false?

A

False [3.23]

20
Q

A lawyer who failed to give a client sufficient advice on ADR options in a case where the use of ADR would be in the client’s interests may be professionally liable. True or false?

A

True [4.33]

21
Q

If proceedings are issued a lawyer could potentially be liable for a wasted costs order if an _______, ______ or ______ or _______ on the part of the lawyer led to a failure to achieve a reasonable outcome using an appropriate ADR process as result of which litigation costs were unnecessarily incurred.

A

improper, unreasonable or negligent act or ommission

22
Q

Litigation normally takes place in _____ _____ whereas ADR processes are normally private. [5.01]

A

Open court

23
Q

Name four ways in which communications in ADR proceedings may be protected

A
  1. Professional duties of condifentiality
  2. Legal professional privilege
  3. The principle protecting “without prejudice” communications
  4. A contractual confidentiality clause
24
Q

In ADR processes there is __________ of disclosure [5.09]

A

In ADR processes there is no general duty of disclosure [5.09]

25
Q

A party or a third party will usually ask for sufficient information and documentation to be convinced of the strength of a case and may demand sufficient proof as a basis for considering making a concession. True or false?

[5.10]

A

True

26
Q

In mediation, how is the process of disclosure governed (name two ways)

A
  1. By the mediation agreement/contract

2. By the rules of the mediation provider (if applicable)

27
Q

How is disclosure dealt with in arbitration?

A

The parties will normally agree on the extent of mutual disclosure. If there is no agreement the tribunal will determine the scope of disclosure. [5.12]

28
Q

The principle of legal advice privilege protects from disclosure all communications between a lawyer and client in which circumstance?

[5.15]

A

Where the purpose of the communication is giving legal advice

29
Q

Legal professional privilege may be lost when the information in the privilege is ______ [5.15]

A

disclosed

30
Q

Where information or advice is sought from a third party privilege may be claimed in what circumstance? [5.16]

A

Where the sole or dominant purpose of the communication is to assist in the conduct of litigation which has commenced or is reasonably in prospect.

31
Q

Any oral or written communication passing between the parties made in a genuine attempt to settle a dispute will be protected from disclosure. True or false?

[5.18]

A

True

32
Q

It is possible to make an offer “without prejudice save as to costs”. True or false [5.21]

A

True

33
Q

The protection against disclosure is for the benefit of the parties seeking to settle. The privilege is joint and cannot be waived by one party alone. True or false?

A

True [5.21]

34
Q

A meeting will be without prejudice if negotiations are carried out to prevent a dispute arising rather than to resolve a dispute. True or false?

A

False 5.23

35
Q

If a clear admission is made on a particular issue will it be protected by without prejudice from disclosure?

A

No [5.23]

36
Q

True or false:

The words “without prejudice” cannot be used to hide something that should be conveyed in an open communication.

A

True [5.23]

37
Q

It is a long established principle of arbitration law that arbitral proceedings are private and confidential. True or false?

A

True [5.33]

38
Q

If two lawyers meet to discuss settlement in a case, under what rule will the discussions be protected from disclosure?

A

Without prejudice [5.30]

39
Q

In an adjudicative process it is normally possible for one party to provide confidential information to the tribunal which is not disclosed to the other side. True or false?

A

False [5.35]

40
Q

Name 3 reasons why ADR may be a cost effective option

A
  1. An ADR process can often be completed for a fixed agreed fee
  2. The parties can control related expense through the agreement they make as to the ADR process to be used
  3. The parties can avoid or control expensive processes (disclosure, witness statements)
  4. Lawyers may be able to estimate the costs of time needed to prepare for an agreed ADR process rather than litigation
  5. The use of ADR can assist in avoiding escalation of costs due to adversarial litigation

RODOC (5 decks)

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