Topic 12: Alternative Dispute Resolution Flashcards
Topic 12: Alternative Dispute Resolution
When you try and resolve a matter for the client looking at the rights of the parties and interest of the parties.
Must seek what outcome the client is trying to achieve. Only risk is time.
Negotiation
Negotiation can happen at any time from when you meet your client through and during the trial.
No third party is involved yet.
Mediation
Mediation contributes to Rule 5 of to facilitate the resolution of real issues at a minimum of expense with the objective to avoid undue delay and technicality.
Mediation is a processed by which two or more parties with the assistance of an independent third party identifies the issues, explore options and attempts to reach an agreement.
The referral to ADR will be in consent forms from the courts or through a court order. The court has an overriding obligation to take part in some form of ADR as an alternative to trial.
to get an order one party must have made an application.
Court ordered mediation is only in District court or higher. In mags court they have a direction conference.
Mediation: Advantages
Confidential
The resolution is final and no appeal from there, removing litigation risks.
Lasting agreement
Stress free
Allows them to get what they want
Although it may not resolve all issues, but it may resolve some.
Mediation: Disadvantages
Parties need to compromise
You should not tell them absolutely everything, as they may use it against you in trial through finding other means
If unsuccessful, it increases cost of litigation
Can be used by some parties just to hold up trial to give them more time
Not all parties are suited for mediation
Case Appraisal
A case appraiser is someone who makes an independent determination on the disputed facts or issues and has power to determine the process to be used. e.g. A lawyer, barrister who give their view as to what they say the outcome should be.
Not binding until the time for filing it has passed and the Supreme Court file it to order. You have 28 days to decide if you like the outcome of the appraiser or not and go to court if not.
If you go to court anyways after rejecting case appraiser, you must pay the other sides costs.
Can still have legal representation at appraisal.
Case appraiser has power to award costs.
Case Appraisal: Advantages
Gives parties opportunities to identify the issues as if going to trial and hear the opinion of an independent experienced practitioner but not obliged to accept.
Confidential and admissions are inadmissible in court
Proceedings referred to ADR are put on stay
Each party is severally liable for costs incurred.
Case Appraisal: disadvantages
The other party has now heard all of your evidence.
Arbitration
Private court where former judged hear the matter. The judgement is not published to the public and mostly used for matters outside of its borders.
