W8 A&Q (ADR) Flashcards
What are forms of ADR?
1) Negotiation
2) Mediation
3) Arbitration
4) Mediation/Arbitration (Med-arb)
5) Early neutral Evaluation/Expert appraisal/ Expert Evaluation
6) Expert determination
7) Conciliation
What is negotiation?
Negotiation is a communication process between parties that is intended to reach a comprise or agreement to the satisfaction of both parties.
What is mediation?
Mediation is a confidential process intended to facilitate the resolution of disputes through the medium of an impartial third party - the mediator.
Does the mediator have the power to bind the parties?
No
If the mediation does not end in an agreed resolution, can the content be made know to the court?
No, the content in the mediation will remain confidential
What is the procedure of meditation?
Each party (usually with legal representative) will be present in the same location but in different rooms.
The mediator will move between the rooms delivering settlement offers and guiding each party to reflect on those offers and the alternatives to reaching an agreement.
What is arbitration?
Arbitration is a process by which a dispute is resolved by an impartial adjudicator whose decision to the dispute will be final and binding.
What is the consequences of arbitration?
By agreeing to arbitrate disputes parties are agreeing to
1) oust the jurisdiction of the court to hear the matter
and
2) to give the jurisdiction to a different impartial party (the adjudicator) instead.
3) Long and formal process governed by rules and statute.
What stage does arbitration arise?
- When negotiating a contract the parties may decide to include an arbitration clause in their agreement to cover disputes that arise in the future.
or
- When a dispute has arisen, parties can choose to deal with it by way of arbitration.
What is the advantage to arbituation?
a) privacy
b) easier enforcement in certain jurisdiction
c) the ability to choose specialist to determine the dispute
d) flexibility
What is med-arb?
Is a process whereby parties agree that, initially they will try to resolve any dispute by mediation.
In the event that this does not result in satisfactory resolution of the matter, the matter will move to arbitration pursuant to which a binding determination will be made.
What is early neutral evaluation/expert appraisal/expert evaluation?
These terms all refer to processes where an independent party is appointed by the parties, to provide a non-binding assessment of the matter(s) referred to it.
Who can bean independent party in an early neutral evaluation/expert appraisal/expert evaluation?
Could be a lawyer
But
Alternatively could be an expert relevant in a matter.
Will the party have to pay for the independent party?
Yes for time and cost
What does the assessment in an early neutral evaluation/expert appraisal/expert evaluation provide?
An impartial ‘opinion’ which might usefully influence the parties in future settlement discussions. NOT BINDING.
What is an expert determination?
An independent expert on the subject matter is appointed by the parties to determine the dispute.
How is the procedure of an expert determination determined?
By contract between the parties.
When is expert determination suitable?
For disputes requiring technical knowledge
BUT *this may not be suitable if the parties wish to be fully heard and there are issues of credibility
Is the expert determination binding?
Yes
What is the difference between expert determination and expert appraisal?
Expert determination: Binding
Expert appraisal: NOT binding
What is conciliation?
Conciliation involves an independent neutral third party in helping parties to resolve their dispute.
*Conciliation often forms part of statutory scheme or other regulatory scheme, and that scheme might provide who the conciliator should be, and the process involved.
Is conciliation binding?
No