Civil (10)

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What are the six types of alternative dispute resolution?: (1) Negotiation
(2) Mediation
(3) Med-Arb
(4) Expert Appraisal
(5) Expert determination
(6) Early neutral evaluation
Describe negotiation as a form of ADR: A communication process between parties that is intended to reach a compromise.
Describe mediation as a form of ADR: (1) Confidential process
(2) Intended to resolve the dispute
(3) Through the medium of an impartial third party
(4) No authority to make a decision binding on the parties
(5) Failure - will not be known to court
Describe Med-Arb as a form of ADR: Parties agree to initially resolve by mediation. Failing that, the matter will move onto arbitration: pursuant to which a binding determination will be made.
Describe Expert Appraisal as a form of ADR: (1) Independent expert on subject
(2) Expert provides a non-binding assessment of the matter referred to it.
Describe Expert Determination as a form of ADR: (1) Independent expert
(2) Results in binding determination
(3) Limited rights of appeal
(4) Expert's power in separate ToR

This is particularly suited to disputes requiring technical knowledge.
Describe Early Neutral Evaluation as a form of ADR: (1) Independent and neutral evaluator
(2) Evaluation gives non-binding and confidential assessment of the dispute

- Most effective if attempted early.
- May assist in negotiations as provides a - Realistic appraisal.
- May potentially break dead-lock
How does active case management interact with ADR?: Active case management includes 'encouraging the parties to use an ADR procedure if appropriate'

CPR 1.4(e)
Can parties request for proceedings to be stayed while the parties try to settle?: Yes. CPR 26.4.

A stay for one month will usually be ordered.
Can parties request an extension to a stay in proceedings?: Yes. Extentions will generally be for no longer than 4 weeks and may only be ordered by the court.
What must the claimant do if settlement i reached within the stay period?: Notify the court (CPR 26.4(4))
Can a party apply for a stay to be lifted so that the claim can proceed towards trial?: Yes (CPR 26 PD 3.3)
What might the consequences be of failure to consider ADR?: Costs order as the court will look at the conduct of the parties (CPR 44.2(4))
When looking at the conduct of the parties, what CPR sets out the conduct that is included?: CPR 44.2(5)
What are the advantages of mediation?: (1) Can be quick and cheap
(2) Whole process is subject to 'without prejudice' privilege
(3) Focus on interests of parties, rather than legal rights
(4) Greater opportunity for client to get involved
What are the disadvantages of mediation?: (1) Clients are often concerned that offering to mediate may be perceived as s sign of weakness
(2) If no settlement, client is likely to consider the process to have been a waste of time and money.
When will mediation not be appropriate?: (1) Immediate injunctive relief required;
(2) Either party cannot legally enter into a contract;
(3) Either party's status or consti. rights are affected;
(4) A precedent is required; or
(5) Either party is not genuinely committed.
When should mediation be considered in a dispute?: It should be considered at all major stages.
Commercially, why might mediation be a good option from the start?: It may assist in maintaining commercial relationships before parties become entrenched in a position they feel they have to defend.
When might be a good time to enter into mediation?: Post disclosure as the parties will have a better understanding of the strengths and weaknesses of their own case.
What authority provides that where parties contractually agree to 'a particular and well-known procedure from an experience dispute resolution service provider', the contractual obligation will be enforceable?: Cable and Wireless PLC v IBM United Kingdom Limited
Cable and Wireless PLC v IBM United Kingdom Limited: Where parties contractually agree to 'a particular and well-known procedure from an experience dispute resolution service provider', the contractual obligation will be enforceable.
To what extent are discussions with a mediator confidential and privileged?: If not expressly provided for in the mediation agreement, the mediator will be subject to an implied obligation to maintain the confidentiality of the proceedings.
What must parties be careful of during mediation.: To be clear on whether the Mediator is permitted to disclose the content of all discussions to the other side, or only those parts agreed with each party
For the purpose of privilege in the context of mediation, who does privilege belong to?: Privilege will belong to the parties to the mediation, not to the mediator. This means that privilege can only be waved by all parties.
Who needs to attend mediation from each party?: A representative who has authority to settle the matter.
Describe the structure of mediation.: 1) Introduction and joint session
2) Clarifying the issues
3) Break out sessions
4) Trying to achieve settlement
What will be prepared if all matters are resolved at mediation?: A settlement agreement will be drawn up recording the terms of the agreement
What should ideally take place before the parties leave the mediation?: The parties should execute the settlement agreement.
If proceedings are on-going, how might a settlement agreement be used?: It can be incorporated into a consent order and therefore is enforceable as a court order.
Is a written settlement agreement signed by or on behalf of the parties (which is unconditional and unqualified) enforceable?: Yes as a contract
Are mediation costs recoverable as 'costs in the case'?: Yes. CPR 47 PD 5.12(8)
What is arbitration?: Dispute is resolved by an impartial adjudicator whose decision will be final and binding.
Is arbitration considered to be a from of ADR?: No. It aims to provide a final decision of a dispute by a private tribunal.
What types of clients are likely to prefer arbitration?: Business clients
What are the advantages to arbitration?: (1) Private
(2) Ease of enforcement (NY convention)
(3) Specialist judge can be selected
(4) Not generally subject to appeal
(5) Flexibility over timetable
(6) Neutral country can be selected
(7) Speedier and less costly sometimes
What two types of arbitration exist?: (1) Institutional; and
(2) Ad hoc.
What is institutional arbitration?: (1) Institution involved in appointment of arbitrator
(2) Institution's rules followed
(3) Institution supervises the arbitration
What is 'Ad hoc' arbitration?: (1) Arbitration conducted without the assistance of an institution; and
(2) The parties agree the rules and procedure to be followed.
Where can the general principles behind the Arbitration Act 1996 be found?: S. 1
What does the Arbitration Act 1996 comprise?: Mandatory and non-mandatory provisions
What do the mandatory provisions apply to?: Any arbitration (or arbitration agreement) regardless of the parties' desires.
What is required for an arbitration agreement to be enforceable under the Act?: Must be in writing or evidenced in writing (s. 5)
How does the act define an arbitration agreement?: An agreement to submit to arbitration present or future disputes (s. 6)
Can an arbitration clause survive termination of a contract?: Yes. Section 7 of the Arbitration Act provides for the separability doctrine. This means that the clause still applies to disputes arising before or after termination.
What is the procedure if a party issues proceedings while a value arbitration agreement is in place?: The defendant should:

(1) acknowledge service and dispute court's jurisdiction; and
(2) apply to the court under CPR 62.8 to request a stay pursuant to s. 9 of the Act (mandatory provision)
What must a defendant disputing jurisdiction be careful not to do.: Not take any other steps in the court proceedings, this may be treated as having "submitted" to the court's jurisdiction.
In what rare circumstances will the court not grant a stay?: Where the court finds the arbitration agreement to be "null and void, inoperative or incapable of being performed" (s. 9(4) of the Act)
How is arbitration commenced?: One of the parties should serve a written request to arbitrate on the other containing:
(1) name;
(2) brief statement; and
(3) list of arbitrators.
What is meant by caucus in the context of mediation?: A 'Caucus' is a confidential meeting of members of one side of a dispute, usually with the mediator, to discuss options and attempt to find a resolution.
What is meant by shuttle diplomacy?: Shuttle diplomacy is the action of an outside party in serving as an intermediary between (or among) principals in a dispute, without direct principal-to-principal contact.
What is a 'Tomlin order'?: (1) A court order under which a court action is stayed, (2) on terms which have been agreed in advance between the parties and (3) which are included in a schedule to the order.

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Number of cards 52

Created By shughes