Topic 4- Non-Adjudicative ADR

Question 1

What is Early Neutral Evaluation (ENE)?

Answer 1

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

Question 2

What is non-adjudicative ADR?

Answer 2

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

Question 3

Facilitative ADR

Answer 3

Facilitates the negotiations between the parties (Eg, mediation)

Question 4

Evaluative ADR

Answer 4

Evaluates the disputes between the parties (Eg, ENE)

Question 5

Why is ENE advantageous at an early stage?

Answer 5

It is useful where parties have unrealistic or entrenched views

It serves as a reality check

Question 6

When can ENE be carried out?

Answer 6

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

Can also be used to assess costs after proceedings

Question 7

Procedure of ENE

Answer 7

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

Question 8

Judicial Evaluation

Answer 8

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

Question 9

What is mediation?

Answer 9

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

Question 10

Effectiveness of mediation

Answer 10

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

Question 11

What disputes are suitable for mediation?

Answer 11

Any kind of dispute is suitable

Question 12

When should mediation happen?

Answer 12

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

The best time is when there is a HAPPY MEDIUM

Question 13

What is the happy medium?

Answer 13

This is the best time when ADR should take place

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

Question 14

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

Answer 14

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

Question 15

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

Answer 15

To organise the mediation process

To act as a facilitator during the process

To act as an intermediary between the parties

Question 16

What does the organisational role of a mediator entail?

Answer 16

Chairing the meetings and managing the process

Controlling the form of mediation

Question 17

What does the facilitator role of a mediator entail?

Answer 17

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

Helping the parties identify the issues and communicate with each other

Question 18

What does the intermediary role of a mediator entail?

Answer 18

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

They will convey information between each party

Question 19

Qualities of a mediator

Answer 19

Competent and knowledgable

Independent and neutral

Fair to all parties

Confidential

Question 20

What is the confidentiality in mediation?

Answer 20

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

Question 21

Without Prejudice Rule

Answer 21

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

Question 22

Legal Advice Confidentiality Rule

Answer 22

Confidentiality obligation on all legal advice between client and lawyer

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

Question 23

Litigation Confidentiality Rule

Answer 23

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

Question 24

Is the mediator obliged to confidentiality?

Answer 24

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

Question 25

When will the court override the confidentiality provisions?

Answer 25

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

Question 26

What communications are not protected by the Without Prejudice Rule?

Answer 26

Any communications that were not for the purpose of exploring settlement

Question 27

What is a Position Statement in mediation?

Answer 27

A mediator can ask for a position statement from the parties

This sets out their cases

Is only really required for complex cases

Question 28

What supporting documents are needed for mediation?

Answer 28

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

> Witness statements
Expert reports
Statements of case

Question 29

Stages of Mediation

Answer 29

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

Question 30

Conciliation

Answer 30

Involves a neutral third-party facilitating a negotiation between parties

The decision can be non-binding

Question 31

Is conciliation facilitative?

Answer 31

Yes, it facilitates negotiations

Question 32

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

Answer 32

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

A court will only enforce it if it is clear

Question 33

Joint Settlement Meetings

Answer 33

There is no third-party used here

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

Question 34

Why are Joint Settlement Meetings cost effective?

Answer 34

There is no third party needed

Question 35

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

Answer 35

Yes, it can be undertaken by just one party

Question 36

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

Answer 36

The resulting agreement and the fact that mediation took place

Question 37

Can the duty of confidentiality in mediation be waived?

Answer 37

Yes, if it is in the interests of justice