SGS 11: ADR / Arbitration Flashcards
What are the 5 forms of Alternative Dispute Resolution (ADR)?
- Expert determination
- Expert appraisal
- Early neutral evaluation
- Mediation
- Med-Arb
What is expert determination?
- Independent expert
- Appointed to provide a binding determination (though no authority to make a costs order).
- Suitable for disputes requiring technical knowledge, but not where there are issues of fact or credibility.
What is expert appraisal?
- Independent expert is appointed to provide a non-binding assessment of the matter referred to it.
- Parties must pay for time & costs.
What is early neutral evaluation?
- An independent, neutral evaluator gives a non-binding and confidential assessment of the dispute.
- No procedural requirements.
- Gives a realistic appraisal of each party’s case
What is mediation?
- Confidential process to facilitate resolution of disputes through medium of an impartial 3P.
- No authority to make binding decision.
- Most popular & frequently used.
What is Med-arb?
- Initially decide to resolve dispute by mediation, but failing that, will use arbitration
When should ADR be considered in any proceedings?
- Early stages
- Should be continuous throughout
- May be more appropriate after disclosure when the parties know each others cases better
- Arbitration = instead of litigation
Why would ADR be used?
- Overriding objective
- Avoid sanctions - e.g. cost sanctions in CPR 44.2
- Where proceedings are “stayed” fro specific purpose of attempting to settle using ADR.
For MEDIATION, who is the third party involved?
- Mediator
For MEDIATION, what is the amicable solution?
- Yes - there is an amicable solution
- Aims to preserve the commercial relationship
For MEDIATION is there a binding decision?
- No
- Because mediation facilitates settlement only
For MEDIATION what is the documentary evidence required?
- Not much
- Need a prepared bundle only
FOR MEDIATION, are there procedural rules that need to be adhered to?
- No
For MEDIATION, is there a legally correct solution
- Unclear - may be the most commercial solution instead?
For MEDIATION, can the COURTS enforce the results?
- As long as any settlement is recorded in Tomlin order
- Or formal contract
For MEDIATION, is there precedent value?
- No
For MEDIATION, is there billing costs order?
- No
- Costs likely incorporate into any settlement sum
- As agreed by the parties
For MEDIATION, are the proceedings held in private?
- Yes
- Confidentiality signed
- Held on “without prejudice” basis
For ARBITRATION , who is the third party involved?
- The arbitrator
For ARBITRATION , is this an amicable solution?
- No
- Just as contentious and adversarial as litigation is
For ARBITRATION is there a binding decision?
- Yes
- Under S58 Arbitration Act 1996
For ARBITRATION what is the documentary evidence required?
- Likely, but it depends on what the parties have agreed
FOR ARBITRATION , are there procedural rules that need to be adhered to?
- Yes there are
- The mandatory rules in Arbitration Act 1996 Schedule 1
For ARBITRATION , is there a legally correct solution
- Is likely that there is
- But depends on what the parties agree
- Arbitration act s45 / 46/ 52 / 69
For ARBITRATION , can the COURTS enforce the results?
- Yes they can
- S66 Arbitration Act 1996
For ARBITRATION , is there precedent value?
- No
- Parties are contractually bound
- But they are not binding on the 3rd party
For ARBITRATION , is there billing costs order?
- This will depend on what the parties actually agree
- Arbitration Act s59-65
- Especially section 63
For ARBITRATION , are the proceedings held in private?
- AA 1996 is silent on this
- Confidentiality agreements are usually signed
For LITIGATION , who is the third party involved?
- The judge
For LITIGATION , is this an amicable solution?
- No
- Court promotes that ADR.
- But these proceedings ARE adversarial.
For LITIGATION is there a binding decision?
- Yes
- Under CPR 40.7
For LITIGATION what is the documentary evidence required?
- Yes
- Under CPR 31, 31, 35
FOR LITIGATION , are there procedural rules that need to be adhered to?
- Yes there are
- Under the CPR
For LITIGATION , is there a legally correct solution
- Yes
For LITIGATION , can the COURTS enforce the results?
- Yes
- CPR 70-73
For LITIGATION , is there precedent value?
- Yes
- Under the usual rules of precedent
For LITIGATION , is there billing costs order?
- Yes there is
- CPR 44
For LITIGATION , are the proceedings held in private?
- Not 100% either way
- Trial is most likely public
- But have to look at CPR 39.2
