Syllabus Area 5 - Non-Adjudicative Options Flashcards
What is ENE?
ENE is where an independent neutral evaluator, usually retired KC or judge, evaluates the case on its merits giving an evaluation which parties can use to settle their dispute but it is non-binding
Is ENE confidential?
Yes, it is confidential and has without prejudice rule.
When should ENE be used?
ENE can be used at any stage but usually at early stages is best
What is the ENE procedure?
ENE procedure allows for a flexible approach. Parties make submissions with supporting evidence to evaluator who then evaluates the evidence before them. Then, they provide a recommendation and likely outcome of the dispute.
Can an ENE decision be enforced?
It is non-binding and not enforceable but parties can base the outcome of the ENE on their settlement outcome.
Can ENE be carried out in courts?
Yes, there can be a judicial evaluation by a judge to help parties settle, again same procedure.
What is conciliation?
Conciliation does not have a defined meaning - it is a non-adjudicative, facilitative process which involves a third party e.g ACAS
What is mediation/general principles?
Mediation is a flexible, cost effective, confidential process which involves a third party mediator who is a facilitator of the process, organiser of the process and intermediary in a formal settling. Parties remain in control of the issues and outcome.
What type of disputes are suitable for mediation?
Mediation is suitable for all dispute that are suitable for negotiation.
How can mediation be sought?
Either voluntarily or through a commercial contract there may be a clause which means parties must engage before commencing litigation
What is mediation not suitable for?
Debt claims.
When should mediation be done?
At any stage of proceedings but uusally courts decide the best time e.g stays proceedings for parties to engage. If parties have defined issues/have all evidence, should try before proceedings. If parties do not, should agree before proceedings.
What if the party does not agree?
It must be reasonable and explainable - adverse costs order may be implemented.
What is the mediators role?
Mediators role is organisational (manage meetings, set agendas, suggest order of issues negotiated, control the process). It is also facilaitive: (assist parties in negotiating, collecting information, identifying issues, encouraging settlement). It is also intermediary: (going between parties during private meetings, conveying offers, information and rejections).
What is the ethical conduct required of the mediator?
Must be competent, knowledgable, up to date with training, no conflict of interest, act impartial, ensure all parties understand process/settlement, must act fair between parties, avoid forced settlement.
What is required in terms of confidentiality?
Mediation agreement usually contains a term that neither party can reveal information of process without consent of other party.
What are the exceptions to confidentiality?
Illegality, public harm, harm to individual
What is the without prejudice rule in mediation?
This applies to communications between parties in mediation that they cannot be relied upon during court proceedings.
What can be done to enforce a rule without prejudice?
Court may grant injunction to restrain party from referring to discussions
Can a mediator rely on without prejudice rule?
No, only parties.
What is the rule regarding legal advice privilege in mediation?
This is also upheld in mediation and cannot be waived by one party bringing proceedings against the other.
Who should attend the mediation?
Whoever has direct knowledge, mostly affected, necessary expertise and authority to settle.
What kind of statements are protected without prejudice?
Position statements; protected as oral or written communications between parties for the purpose of exploring settlement such as position statements will be protected.
What are the key supporting documents in mediation?
There should be an agreed bundle where parties should co operate and provide one where possible e.g witness statements part 36 offers, correspondence, plans, photos, statements of case.
What are the stages in mediation?
Before: agreement signed, bound by confidentiality agreement, address concerns of process. Opening stage: intros of each parties formal positions. Exploration stage: exploring in joint or close information. Negotiation stage: usually private meetings whereby mediator passing through rooms. Settlement: joint meetings between everyone to draw agreement up.
