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BTC- Civil Litigation > Topic 4- Non-Adjudicative ADR > Flashcards

Topic 4- Non-Adjudicative ADR Flashcards

1
Q

What is Early Neutral Evaluation (ENE)?

A

This is a private, non-binding assessment and evaluation of the facts, evidence and merits of a case

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2
Q

What is non-adjudicative ADR?

A

Where a third-party facilitates or evaluates a case, helping to push the parties into making a decision or settlement

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3
Q

Facilitative ADR

A

Facilitates the negotiations between the parties (Eg, mediation)

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4
Q

Evaluative ADR

A

Evaluates the disputes between the parties (Eg, ENE)

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5
Q

Why is ENE advantageous at an early stage?

A

It is useful where parties have unrealistic or entrenched views

It serves as a reality check

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6
Q

When can ENE be carried out?

A

It can be carried out any stage of the claim, even after litigation

Can also be used to assess costs after proceedings

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7
Q

Procedure of ENE

A
  1. The parties choose their evaluator and what issues need identifying
  2. Both parties then make their submissions to the evaluator
  3. The evaluator evaluates the evidence
  4. An evaluation is then made, which is non-binding
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8
Q

Judicial Evaluation

A

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

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9
Q

What is mediation?

A

Where a third-party facilitates negotiations between the parties in dispute to find a solution

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10
Q

Effectiveness of mediation

A

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

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11
Q

What disputes are suitable for mediation?

A

Any kind of dispute is suitable

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12
Q

When should mediation happen?

A

Can take place at any stage up to trial, and even pending an appeal

The best time is when there is a HAPPY MEDIUM

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13
Q

What is the happy medium?

A

This is the best time when ADR should take place

When the issues are known, but the costs are not high so far

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14
Q

What should be done if a party is reluctant in considering mediation?

A

A mediator can be used to give advice on the benefits of mediation

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15
Q

What are the three main areas of a mediator’s role?

A

To organise the mediation process

To act as a facilitator during the process

To act as an intermediary between the parties

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16
Q

What does the organisational role of a mediator entail?

A

Chairing the meetings and managing the process

Controlling the form of mediation

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17
Q

What does the facilitator role of a mediator entail?

A

Will assist the parties in negotiating with one another in an effective manner

Helping the parties identify the issues and communicate with each other

18
Q

What does the intermediary role of a mediator entail?

A

The mediator will act as a “shuttle diplomat” during private meetings of the parties

They will convey information between each party

19
Q

Qualities of a mediator

A

Competent and knowledgable

Independent and neutral

Fair to all parties

Confidential

20
Q

What is the confidentiality in mediation?

A

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

21
Q

Without Prejudice Rule

A

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

22
Q

Legal Advice Confidentiality Rule

A

Confidentiality obligation on all legal advice between client and lawyer

Owed by the client and lawyer, can only be waived by the client

23
Q

Litigation Confidentiality Rule

A

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

24
Q

Is the mediator obliged to confidentiality?

A

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

25
Q

When will the court override the confidentiality provisions?

A

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

26
Q

What communications are not protected by the Without Prejudice Rule?

A

Any communications that were not for the purpose of exploring settlement

27
Q

What is a Position Statement in mediation?

A

A mediator can ask for a position statement from the parties

This sets out their cases

Is only really required for complex cases

28
Q

What supporting documents are needed for mediation?

A

An agreed bundle- both parties should agree what documents are provided-

> Witness statements
Expert reports
Statements of case

29
Q

Stages of Mediation

A

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

30
Q

Conciliation

A

Involves a neutral third-party facilitating a negotiation between parties

The decision can be non-binding

31
Q

Is conciliation facilitative?

A

Yes, it facilitates negotiations

32
Q

What must there be for a binding negotiation agreement to be made?

A

The terms of the agreement must be sufficiently clear to be enforceable

A court will only enforce it if it is clear

33
Q

Joint Settlement Meetings

A

There is no third-party used here

Instead, it is attended by the parties and their legal reps who discuss and negotiate

34
Q

Why are Joint Settlement Meetings cost effective?

A

There is no third party needed

35
Q

Can ENE be undertaken by just one party to assess the strengths and weaknesses of their own case?

A

Yes, it can be undertaken by just one party

36
Q

What is the only part of mediation that is not confidential?

A

The resulting agreement and the fact that mediation took place

37
Q

Can the duty of confidentiality in mediation be waived?

A

Yes, if it is in the interests of justice

38
Q

What evidence can be adduced from mediation?

A

Nothing, apart from the signed settlement agreement, and evidence that it was concluded at the mediation

39
Q

Is ENE binding?

A

No

40
Q

Is ENE binding?

A

No

BTC- Civil Litigation (19 decks)

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