Topic 4- Non-Adjudicative ADR Flashcards
What is Early Neutral Evaluation (ENE)?
This is a private, non-binding assessment and evaluation of the facts, evidence and merits of a case
What is non-adjudicative ADR?
Where a third-party facilitates or evaluates a case, helping to push the parties into making a decision or settlement
Facilitative ADR
Facilitates the negotiations between the parties (Eg, mediation)
Evaluative ADR
Evaluates the disputes between the parties (Eg, ENE)
Why is ENE advantageous at an early stage?
It is useful where parties have unrealistic or entrenched views
It serves as a reality check
When can ENE be carried out?
It can be carried out any stage of the claim, even after litigation
Can also be used to assess costs after proceedings
Procedure of ENE
- The parties choose their evaluator and what issues need identifying
- Both parties then make their submissions to the evaluator
- The evaluator evaluates the evidence
- An evaluation is then made, which is non-binding
Judicial Evaluation
This is ENE carried out by a judge
The judge will consider the issues and evaluate
This helps give the parties an indication of the outcome at trial
What is mediation?
Where a third-party facilitates negotiations between the parties in dispute to find a solution
Effectiveness of mediation
It is flexible and can be tailored to suit each party’s needs
Results in a speedier resolution than litigation
It is cost effective
Confidential
The mediator can help diffuse any animosity or confrontation
Can help work through a deadlock in negotiations
What disputes are suitable for mediation?
Any kind of dispute is suitable
When should mediation happen?
Can take place at any stage up to trial, and even pending an appeal
The best time is when there is a HAPPY MEDIUM
What is the happy medium?
This is the best time when ADR should take place
When the issues are known, but the costs are not high so far
What should be done if a party is reluctant in considering mediation?
A mediator can be used to give advice on the benefits of mediation
What are the three main areas of a mediator’s role?
To organise the mediation process
To act as a facilitator during the process
To act as an intermediary between the parties
What does the organisational role of a mediator entail?
Chairing the meetings and managing the process
Controlling the form of mediation
What does the facilitator role of a mediator entail?
Will assist the parties in negotiating with one another in an effective manner
Helping the parties identify the issues and communicate with each other
What does the intermediary role of a mediator entail?
The mediator will act as a “shuttle diplomat” during private meetings of the parties
They will convey information between each party
Qualities of a mediator
Competent and knowledgable
Independent and neutral
Fair to all parties
Confidential
What is the confidentiality in mediation?
All the parties and the mediator are obliged to confidentiality
This is unless the express consent of the parties, or if there is injustice in proceedings
Without Prejudice Rule
All information that relates to the settlement negotiations is confidential
Anything else is not
This is owed by the parties, can only be waived if both parties agree
Legal Advice Confidentiality Rule
Confidentiality obligation on all legal advice between client and lawyer
Owed by the client and lawyer, can only be waived by the client
Litigation Confidentiality Rule
Confidentiality obligation on all talks on actual or contemplated litigation between client and lawyer
Owed by the client and lawyer, can only be waived by the client
Is the mediator obliged to confidentiality?
Yes, they cannot reveal any information as they are bound by a duty of confidentiality
This is unless it is in the interests of justice
When will the court override the confidentiality provisions?
If it is in the interests of justice to do so
If the parties believe there has been a breach of contract or negligence by the mediator
Where disclosure is required by law
To prevent criminal activity
What communications are not protected by the Without Prejudice Rule?
Any communications that were not for the purpose of exploring settlement
What is a Position Statement in mediation?
A mediator can ask for a position statement from the parties
This sets out their cases
Is only really required for complex cases
What supporting documents are needed for mediation?
An agreed bundle- both parties should agree what documents are provided-
> Witness statements
Expert reports
Statements of case
Stages of Mediation
1- the opening stage- intros and issues set out
2- the exploration stage- issues are explored in open and closed meetings
3- the negotiation stage- private meetings, with mediator acting as a shuttle diplomat
4- the settlement stage- agreement is drawn up
Conciliation
Involves a neutral third-party facilitating a negotiation between parties
The decision can be non-binding
Is conciliation facilitative?
Yes, it facilitates negotiations
What must there be for a binding negotiation agreement to be made?
The terms of the agreement must be sufficiently clear to be enforceable
A court will only enforce it if it is clear
Joint Settlement Meetings
There is no third-party used here
Instead, it is attended by the parties and their legal reps who discuss and negotiate
Why are Joint Settlement Meetings cost effective?
There is no third party needed
Can ENE be undertaken by just one party to assess the strengths and weaknesses of their own case?
Yes, it can be undertaken by just one party
What is the only part of mediation that is not confidential?
The resulting agreement and the fact that mediation took place
Can the duty of confidentiality in mediation be waived?
Yes, if it is in the interests of justice
What evidence can be adduced from mediation?
Nothing, apart from the signed settlement agreement, and evidence that it was concluded at the mediation
Is ENE binding?
No
Is ENE binding?
No
