SA1 – General Principles of ADR

Question 1

What are the non-adjudicative processes?

Answer 1

• Settlement offers/Part 36 offers.
• Negotiation
• Mediation/conciliation
• ENE

Question 2

What are the adjudicative processes?

Answer 2

• Expert determination
• Arbitration

Question 3

What are the three grounds under which you can challenge an arbitration award (s67-69 Arbitration Act 1996)?

Answer 3

• Lack of jurisdiction
• Material irregularity
• An error of law

Question 4

Which forms of ADR can a judge order if a party doesn’t consent to it?

Answer 4

ENE. Effect will only be to force the party to take the independent evaluation of their case into account.

Question 5

Does the ‘without prejudice’ principle apply to ADR processes?

Answer 5

Yes

Question 6

What is the duty of parties in relation to ADR?

Answer 6

Engage in ADR whenever that offers a reasonable prospect of producing a just settlement at proportionate cost. Should do so without the court’s intervention.

Question 7

What is the strongest form of encouragement a court can give?

Answer 7

Can direct parties to consider ADR at a case management conference/pre-trial review.

Commercial Court order.

Question 8

What is a party required to file and serve before the case is allocated to a track?

Answer 8

Directions questionnaire.

N181 (fast and multi)
N180 (small)

Question 9

When can a court make orders staying the whole/part of proceedings for ADR?

Answer 9

• Of its own motion
• At the request of one or more of the parties.

Question 10

What happens when a stay is granted at the track allocation stage?

Answer 10

A track will not be allocated until the end of the stay period.

Question 11

How long will a stay for ADR be?

Answer 11

1 month (court can extend, but usually not for more than 4 weeks without clear reason)

Question 12

If a stay is granted and a settlement is reached, what must parties do in regard to proceedings?

Answer 12

Formally dispose of them through a consent order or Tomlin order.

Question 13

Halsey. In considering whether a party acted unreasonably in refusing ADR, which factors will the court consider?

Answer 13

All the circumstances of the case, including (not limited to):
* The nature of the dispute
* The merits of the case
* The extent to which other settlement methods have been attempted.
* Whether the cost of the ADR process would be disproportionately high;
* Whether any delays in setting up and attending ADR would have been prejudicial
* Whether the ADR process had a reasonable prospect of success

Question 14

How will the courts respond to a claim for an action brought only to recover costs where full compensation, but not costs, could be achieved under ADR?

Answer 14

Such a claim would be struck out under CPR 3.4.

Question 15

What must the unsuccessful party show to get a costs order against a party who refused ADR?

Answer 15

That ADR would have had a reasonable prospect of success (not that it would have succeeded).

Question 16

Do the cost guidelines for ADR extend to a case where the successful party didn’t initiate ADR?

Answer 16

No. They have to have unreasonably refused.

Question 17

Silence in the face of an invitation to use ADR will not lead to an adverse costs order where the parties were fully engaged in another process R (Crawford) v Newcastle upon Tyne.

In what other circumstance did the courts consider it reasonable?

Answer 17

Whether the complex issues of law raised needed to be resolved by the court.

Gore v Naheed.

Question 18

On allocation to the multi-track, what directions will a court give?

Answer 18

Case management directions, including directions relating to ADR.

Wherever appropriate, it is desirable these should include directions to enable mediation e.g. the required disclosure of key documents.

Question 19

Which term describes the process which results in a binding determination being made by a neutral third party appointed by the parties and in which there are limited grounds on which the decision can be challenged, and the decision is enforced by bringing proceedings for breach of contract?

Answer 19

Expert determination.

Question 20

Which term describes the process by which independent and neutral third parties are appointed to determine a dispute in accordance with the legal merits and in which there are limited grounds of appeal against the decision and the decision can be directly enforced in court?

Answer 20

Arbitration.