STAGE 1 - ADR

Question 1

FACT

Answer 1

Litigation is considered the last resort and parties should seek to resolve disputes amicably before bringing proceedings against each other.

This can be achieved by the parties attempting alternative dispute resolution (ADR).

Settling the disputes OUTSIDE of court.

Question 2

What are the advantages of ADR?

Answer 2

*Speed
*Flexibility
*Client can withdraw at any time
*Preserves business relationships
*privacy
*cost

Question 3

What are the disadvantages of ADR?

Answer 3

*Enforceability of awards
*limited disclosure
*the opponent can withdraw at any time

Question 4

What are the methods of arbitration?

Answer 4

1) Arbitration (Judicial & Contractual)
2) Negotiation
3) Mediation
4) Conciliation
5) Early Neutral Evaluation

Many of these use an independent third party, such as a mediator to help parties break the deadlock.

Question 5

Which Civil Procedural Rule states the courts must encourage parties to use ADR if the court considers it appropiate?

Answer 5

CPR - R1.4(2)(e)

Question 6

What is Negotiation?

Answer 6

This is where the parties, or their lawyers discuss possible solutions. Discussions can be open, “without prejudice) allowing the parties to negotiate freely.

Question 7

What are the advantages of Negoitiation?

Answer 7

*It can be done at any point in the process, that is before, or after the litigation process

*the parties can walk away at any time

*it may avoid the need to bring proceedings or attend trial

*the outcome is usually confidential and private

*avoiding litigation preserve the relationships of the parties

Question 8

What are the disadvantages of Negotiation?

Answer 8

1) Possible Solicitor Costs
2) the demands of the other side, particularly litigants in person, hampering the progress

Question 9

What is Mediation?

Answer 9

Mediation involves the intervention of a third person, or mediator, into a dispute to assist the parties in a agreement which will be written down and binding.

The mediator meets with the parties at a neutral location where the parties can discuss the dispute and explore a variety of solutions.

Mediators are trained to handle emotional barriers to settlement, problems of misperception, or poor communication.

Parties who are unwilling to meet face-to-face to discuss the dispute.

Question 10

What are the advantages of Mediation?

Answer 10

1) the parties can agree a resolution of their choice, allowing a wider scope that the courts would offer
2) this tailored “win win” result compares favourably against “win-lose”
3) enables the parties to continue their relationship on a positive footing
4) parties can walk away at any time
5) the mediator is independent and neutral
6) confidential process
7) quicker and cheaper than litigation
8) parties can not use information in court obtained in mediation as it is without prejudice

Question 11

What are the disadvantages of Mediation?

Answer 11

1) Hiring a Mediator can be costly, although costs are normally split
2) Parties must pay their own costs of attending
3) the other party might not share the same attitude so a resolution is not always agreed
4) mediation is not suitable if a party wants to set a legal precedent
5) it is unsuitable for an injunction
6) If a client has an overwhelming strong case, they may find court more favourably rather than compromise

Question 12

FACT

Answer 12

Cases issued in the Country Court which are allocated as small claims track will automatically be referred to mediation

Question 13

What is Arbitration?

Answer 13

Arbitration is a method of resolving a dispute between parties. If both parties agree to arbitration, an independent and neutral arbitrator is appointed and the arbitrator gives a decision on the dispute.

The Arbitrator is usually an expert in the particular area of dispute.

The arbitrator’s decision is called an award. The award is binding on the parties meaning they have to comply with it

There is Judicial Arbitration and Contractual Arbitration.

Question 14

What is Contractual Arbitration?

Answer 14

Contractual Arbitration is when parties to a contract agree to resolve future disputes via binding arbitration rather than in court or otherwise.

Some individuals and companies have decided to include an arbitration clause in their contracts.

Common in certain industries such as shipping or construction. Or Holiday contracts.

Question 15

What are the advantages of Arbitration?

Answer 15

1) There is no need for litigation
2) It is quicker than going to court
3) likely to be cheaper than going to court
4) the decision is made by an impartial third party who will have a degree of expertise in the matter
5) it is private and confidential - helps preserve relationships which is important for companies

Question 16

What are the disadvantages of Arbitration?

Answer 16

1) An arbitration panel or expert can be costly
2) parties often want to be represented by lawyers, which adds further costs to arbitration
3) the process can be time consuming
4) the decision is binding with limited right of appeal

Question 17

What is Conciliation?

Answer 17

Similar to Mediation and Negotiation with similar advantages and disadvantages.

The conciliator plays a more active role is resolving the dispute rather than facilitating discussions.

Common for employment disputes. or multi-party disputes.

Question 18

What is Early Neutral Evaluation?

Answer 18

Early Neutral Evaluation (ENE) is a form of alternative dispute resolution in which an independent and impartial evaluator is appointed to give the parties an assessment of the merits of their case.

The objective of an ENA is to give parties a realistic indication of the strengths and weaknesses of their respective cases to help inform the negotiations between the parties.

Early Neutral Evaluation is typically a non-binding form of alternative dispute resolution which is often without prejudice (in other words hidden from the court) and can help parties avoid further unnecessary stages in litigation.

Disadvantage: it is none binding

Question 18

What is Early Neutral Evaluation?

Answer 18

Early Neutral Evaluation (ENE) is a form of alternative dispute resolution in which an independent and impartial evaluator is appointed to give the parties an assessment of the merits of their case.

The objective of an ENA is to give parties a realistic indication of the strengths and weaknesses of their respective cases to help inform the negotiations between the parties.

Early Neutral Evaluation is typically a non-binding form of alternative dispute resolution which is often without prejudice (in other words hidden from the court) and can help parties avoid further unnecessary stages in litigation.

Disadvantage: it is none binding

Question 19

If a party refuses to use ADR, what could happen?

Answer 19

The Court may take this into account later when it comes to awarding costs.

Co-operation is important from each party, even between solicitors. If on reading any correspondence which the court finds obstructive or difficult, the court may penalise the offending party.

Question 20

What case relates to failing to comply with ADR?

Answer 20

Halsey V Milton Keynes General NHS

Question 21

SUMMARY

Answer 21

ADR and co-operation are important aspects of resolving civil disputes

The methods are
1) Arbitration
2) Mediation
3) Conciliation
4) Negotiation
5) Early neutral evaluation

If the court considers that a successful party acted unreasonably and refused to consider ADR, the court can impose cost sanctions