Unit 4: Adjudicative and non-adjudicative ADR Flashcards
List 7 non-adjudicative forms of ADR
Offer and Acceptance Negotiation Mediation Early Neutral Evaluation Conciliation Complaints/grievance procedures Mini-trial
List 2 adjudicative forms of ADR
Arbitration
Expert determination
What are the advantages of arbitration?
4 examples given
It is a private process.
It can be tailored to the needs of the specific dispute
Parties can select what material is submitted
It can be simple and cost effective if decided on the basis of written submissions
What are the drawbacks of arbitration?
3
It is not necessarily cost-saving
It does not work with non-cooperative parties
It all depends on the experience of the arbitrator
What are the advantages of expert determination?
Flexibility
What are the disadvantages of expert determination?
Can lead to high costs
Binding, even if a flawed decision
What are the advantages of negotiation as a non-adjudicative form of ADR?
Flexible
Cost effective
Clients retain control over the outcome
What are the drawbacks of negotiation as an non-adjudicative form of ADR?
Success depends on well-prepared research
Success depends on the skill of the negotiator
Informality can lead to confusion of process
A negotiation does not work if parties have entrenched/unrealistic views
What are the benefits of mediation?
Neutral third parties can see the pros and cons of parties’ positions more clearly.
Not part of the adversarial framework
Flexible
Good success rates
can be cheaper than litigation
Private
Informal
What are the drawbacks of mediation?
It all depends on the skill of the mediator
If it fails, it can add to overall costs
Parties sometimes try to abuse the process
Does not work for antagonistic parties
Can go on for a while
Is mediation ever binding?
Only where it results in a drawn up agreement between the parties.
Can costs be ordered if a party unreasonably refuses to participate in mediation?
Yes.
What two functions can mediation fulfil?
Evaluative
Facilitative
Should a mediator withdraw if they have a financial stake in the outcome of the mediation?
Yes.
Can parties withdraw from mediation at any time?
Yes; it is voluntary.
When can a court override confidentiality provisions of mediation?
(5)
Where it is in the interests of justice to do so
Where there is an action against the mediator for:
- breach of contract
- negligence
Requirement of law (Proceeds of Crime Act 2002)
Necessary to prevent risk of harm to the public
Prevent criminal activity
What is the effect of the ‘without prejudice’ rule?
Any such communications cannot be relied on in subsequent court proceedings.
Which communications are not protected by the without prejudice rule in mediation? (3)
Documents not created for the purpose of exploring settlement;
The mediation agreement itself
Anything to which all parties in the proceedings waive privilege
What are the four stages of mediation?
Opening stage
Exploration stage
- Joint or closed
Negotiation
- Joint or closed
Settlement stage
Name three court mediation schemes
Mayor’s and London County Court Mediation Scheme
HMCTS Small Claims Mediation Scheme
Court of Appeal Mediation Scheme
In which areas of law are judicial mediation schemes provided for?
(FECT)
Family law
Technology and Construction
Employment
Why is mediation by judges considered controversial?
Judges are meant to be evaluative, not facilitative.
Does an evaluator in ENE get involved in negotiations between parties?
No; they remain advisory and evaluative.
Can decisions of expert determinators be challenged?
Typically, if parties agree to resolve disputes in that way, provided that the expert has done so properly, their decision generally cannot be set aside.
Failure to honour the decision of an expert determinator leads to…
Breach of contract. This decision will then be enforced like any other judgment.
TRUE or FALSE. Arbitration agreements are seen as separable from the rest of the contract.
True.
Arbitratins under the 1996 Act are governed by which three general principles?
The objective is to obtain FAIR RESOLUTION of disputes by an impartial tribunal without unnecessary delay or expense.
Parties are free to agree how their disputes are resolved, subject to PUBLIC INTEREST safeguards;
The court SHOULD NOT INTERVENE except as provided by AA 1996.
can arbitrators make a decision against a person not party to the agreement?
No.
Can arbitrators make a decision on matters not covered by the agreement?
No.
What are the two grounds of appeal for arbitration decisions?
Section 68 AA: serious irregularity
Section 69: appeal on a point of law
Section 9 Arbitration Act governs:
An application to stay legal proceedings.
Can stay of proceedings be claimed against parties not part of the arbitration agreement?
No.
Must applications for stay of proceedings be made before taking steps to answer a substantive claim?
Yes.
Who bears the onus to show that a dispute ought not to be referred to arbitration?
The claimant.
How can you encourage a reluctant party to engage in mediation?
(3)
Warn them of the sanctions
Give them greater control (e.g. they pick M)
Offer to pay
What distinguishes conciliation from mediation?
The conciliator can make suggestions and expres views.
What is the reciprocity reservation that the UK has made under the New York Convention?
It means that its obligations under the convention only apply to the recognition and enforcement of awards made in the territory of other contracting states.
Are oral arbitration agreements outside the scope of the Arbitration Act?
Yes, as per section 81(b). However, they can be enforced via common law.
Under section 5, Arbitration Agreements must be made or evidenced in writing.
Must arbitrators be impartial?
Yes - see section 33 AA.
What can an agreement stipulate about the arbitration tribunal?
NQA
The number of arbitrators
The procedure for appointment
Required Qualifications
Under sectin 24 AA, on what grounds can the appointment of an arbitrator be challenged?
Under section 24:
- If there are justifiable doubs as to their impartiality;
- If they don’t possess the required qualifications
- If they are incapable of conducting proceedings
- If they fail to conduct proceedings properly
You must also show that substantial injustice has been caused.
How can an arbitrator be replaced?
Where parties revoke their authority;
Where the court removes the arbitrator on the basis of specific grounds discussed above
Where the arbitrator resigns
Where the arbitrator dies
The arbitration tribunal has general duties to: (2)
Act fairly and impartially between parties
Adopt suitable procedures to resolve matters
Powers of arbitration tribunal:
Rule on its own jurisdiction
Decide procedural and evidential matters
Appoint experts, legal advisers and assessors
Order security for costs
Order the preservation of evidence
Are arbitrators immune from liability?
they are immune for acts and omissions in the discharge or purported discharge of their duties, unless shown to have acted in bad faith.
They are generally not immune from any liability incurred where the arbitrator has resigned.
Can the arbitrability of a dispute be challenged?
Under section 31: challenge on the ground that the matter is not arbitrable.
What happens where a respondent fails to participate in an arbitration?
The tribunal can continue the proceedings without that party.
Can an arbtration tribunal force a third party to attend a hearing?
No. The tribunal cannot secure the attendance of witnesses.
Are strict rules of evidence in arbitration?
The tribunal has broad discretion to decide.
Does the Arbitration Act 1996 contain express provisions on confidentiality?
No. Parties either expressly identify it in their agreements, or rely on common law.
Where can information produced in or prepared for arbitral proceedings be disclosed in subsequent proceedings?
When consent to disclosure has been given.
When Matters in the arbitration are before the court
Where diclosure is reasonably necessary to establish or protect a party’s legal rights or legitimate interests
Where disclosure is necessary in the interests of justice.
Unless the parties agree otherwise, a tribunal has the powers to order:
A party to do or refrain from doing anything
Specific contractual performance
Rectification, setting aside or cancellation of a deed/document.
What powers does an arbitration tribunal not have?
Powers to award punitive damages, order payment of fine or imprisonment.
Can arbitration tribunals award interim measures?
No.
What happens if there is a mistake in the arbitration award?
Tribunal can amend of its own accord.
However, there are time limits for applications for amendment. (28 days)
What are mandatory laws for right of appeal in arbitration?
Sections 67 and 68 provide respectively for challenge to an award for want of substantive jurisdiction and for procedural irregularity.
These provisions cannot be abandoned by the parties.
Section 69 provides for appeal on a point of English law. Parties can agree to dismiss this.
Is third party funding of arbitration permitted?
Yes.
Define ENE
An independent and impartial evaluator is appointed by the parties to give an assessment or evaluation of the merits of their respective cases.
True or FALSE. ENE is usually non-bining and the process without prejudice.
True.
ENE may be useful in cases where:
Parties have reached an impasse;
Great disparity between the parties’ positions;
One party has an unrealistic view of the case
Confidentiality is essential
Where the case turns on specialist/expert issues
Advantages of ENE
Help to clarify the issues in dispute
Faster than other forms
Help demonstrate the limits of a party’s case
Assist in future settlement negotiations
Disadvantages of ENE
WInner will become more entrenched in their view, the loser will have their position undermined.
Can be expensive and time-consuming if it does not result in settlement.
May be too short and informal to deal with complex issues
True or False. Parties are free to determine the process and identity of the evaluator in ENE?
True.
Which courts is ENE currently available in?
Chancery Division
Technology and Construction
Commercial
Which is more expensive: ENE through a court or through an organisation?
Through an organisation.
Is the evaluation of ENE binding?
No. It is the preliminary opinion of the evaluator on the issue.
What kinds of issues typically go to Expert Determination?
Single issues and technical, rather than legal, questions.
True or False. Expert Determination operates wholly on a contractual basis.
True.
Is expert determination backed up by statute?
No. This means the expert has no residual powers beyond what is stated in the contract.
True or false. Expert determination has fewer grounds of appeal than arbitration.
True.
What can happen if an expert has been negligent in reaching their decision, re expert determination?
The party may have an action for breach of contract, given that they have no statutory immunity.
Parties in expert determination often agree for the decision to be binding except in the case of manifest error. What does this mean?
Such an error occurs where the expert made a plain and obvious error or an obvious oversight/mistake.
What is the facilitative approach of mediation?
Creating an environment which enables parties to collaborate as problem solvers.
Not expressing a personal opinion on the merits of the case.
Identifying issues
Listening
Being a reality-checker
What is the evaluative approach in mediation?
Looking for merit in what is being said by each party and identifying one proposal as being more reasonable than another.
What are the perceived disadvantages to evaluative mediation?
M may be likely to favour one side;
M may seem to be coercing parties into settlement;
Hardening of position by party most likely to succeed
