What is the definition of ADR?
Covers any option where there's a dispute between 2 or more parties
Dispute relates to civil legal rights and/or duties
Dispute could potentially go to court for resolution
What are the key points about ADR procedures? (4 points)
May result in a binding decision being made by a third party (adjudicative) OR by the parties themselves by agreement (non-adjudicative)
May be a relatively informal procedure (arbitration) OR substantial flexibility (negotiation)
The process my be paper-based or involve meetings
Process may be evaluative (with non-binding proposals being made) or facilitative
ADR is compulsory
The court will consider communications made during an ADR process
ADR options can only be used with agreement of the parties
In adjudicative ADE an independent 3P reaches an impartial decision on a dispute
Adjudicative ADR provides less flexibility and less privacy than litigation
In an adjudicative process, the parties have control over the choice of process in that the adjudicative process will be set up by a contractual agreement between them
The parties can't agree what material should be available should be available to the 3P
An adjudicative process won't be subject to court oversight
Adjudicative processes won't be conducted in private
How many arbitrators may conduct an arbitration?
One
One or more
The process to be followed won't be agreed in advance by the parties
An arbitration may only involve a hearing (broadly similar to a trial)
Arbitration is commonly used in commercial cases
What are the main attractions of arbitration?
Parties can select an arbitrator with appropriate expertise and experience
Process is public
Process can be tailored to meet needs of dispute
Process is private
Process can be relatively structured
Process can't be tailored to meet needs of dispute
Process is relatively complicated and costly
Process can be relatively simple and cost effective (if based on written submissions, not a hearing)
Process is relatively unstructured
What are the potential drawbacks of arbitration?
Not necessarily cost-saving option if process similar to trial is used
Parties leave final decision to a 3P and will be bound by it
An arbitration process can't deal easily with a party who fails to cooperate, as an arbitrator will not have the wide powers of a judge
Arbitrator needs to be selected with care (experience, expertise etc.)
What does an adjudication involve?
Neutral 3P with appropriate specialist knowledge acting under an agreed process and reaching a decision on a dispute/specified issues
Neutral 3P acting under an agreed process without having to reach a decision on a dispute/specified issues
Arbitration is most likely to be appropriate in a specialist commercial field
An adjudication process should not be agreed between parties in a binding form
The arbitration process may not be laid down in advance in terms agreed by the industry and/or by the body or person who provides the adjudication
By agreement, adjudication may lead to a binding decision, or to a decision that will only be binding if the parties agree to it, or if neither party appeals within a set period
Offer and acceptance is the simplest form of non-adjudicative ADR
In offer and acceptance, an offer can't be accepted orally
Offer and acceptance is most suited to a case with complex issues
An offer made in an attempt to settle will be protected by without prejudice privilege
If the party may wish to be able to refer to the offer, it doesn't need to be expressly made as an open offer
Negotiation is the least common form of ADR
A mini trial may be arranged to determine what?
Specific issues
Costs
In a mini trial, each side makes summary submissions, and the senior officers seek to reach an agreement
In a mini trial, if the senior officer seeks to reach an agreement but fails to do so, an independent adviser may not issue an opinion
Conciliation normally involves a neutral 3P
In conciliation, the conciliator might propose a decision if the parties can't reach one, and this may be binding
Non-adjudicative ADR or expert determination can potentially take place very quickly, and soon after a dispute arises
An ADR process isn't subject to contractual agreement between the parties
If an adjudicative process is used, control of process will often pass to the individual reaching a decision once the parties have agreed process
Use of ADR will usually keep down the costs of resolving a dispute, particularly if the case is settled at a relatively early stage and if adjudicative ADR is used
Non-adjudicative ADR can potentially take place very quickly, and soon after dispute arises
In non-adjudicative ADR, the parties can't agree the process to suit their needs
Id adjudicative ADR is used, control of process will often pass to the individual reaching a decision once the parties have agreed the process
In adjudicative ADR a more flexible process can be agreed, and in non-adjudicative ADR the process is normally very flexible
Confidentiality is protected more through litigation than through ADR
In non-adjudicative ADR, parties can't agree any terms they wish
An ADR process may be more effective than litigation in preserving a relationship and reaching a settlement that best reflects future interests
ADR can be less constructive than litigation
Risk may be more directly controlled through constructive and proactive use of ADR
Which of the following are criteria which may be relevant to selecting the most appropriate form of ADR?
Importance of minimising costs
Importance of minimising antagonism between parties
Importance of fast resolution
How much control the party wants
Main objectives of the party
How much money the parties have to spend
Importance of future relationship
Views of non-parties
Whether view of expert is important to the key issues
Whether neutral assistance would be valuable
If the main objective of the party is to decide on an appropriate sum of compensation, any ADR process may be apropriate
Mediation with an effective mediator won't prove effective in helping a party to see the strengths and weaknesses of a case more objectively
What factors may mean that ADR is not appropriate?
The need for a precedent
The importance of a court order
The relevance of interim orders
Strength of a case
Complexity of the case
High levels of animosity
Power imbalance
Quasi-criminal allegations
Having a day in court
Enforcement may be an issue
At what time can ADR be used?
At any stage from the time a cause of action arises, but not to appeal
At any stage from the time a cause of action arises to appeal
What does dealing with a case 'justly' include?
Dealing with cases as cost-effectively as possible
Dealing summarily with issues that don't need to be fully investigated and to go to trial
Dealing summarily with issues that do need to be fully investigated
Ensuring case is dealt with expeditiously
Waiting until after exchange of particulars of claim and documents before attempting ADR can mean that attitudes of parties have hardened and what?
Costs have grown (level of which may threaten successful ADR)
Parties may abandon claim altogether
Decisions about ADR may need review as relevant factors will change over time
Records of attempts to use ADR shouldn't be kept
Communications made with a view to settlement are privileged
If a clause is sufficiently clear and is contractually binding, is a court likely to enforce the clause if necessary?
Yes
No
In which situations have clauses providing for pre-selection of ADR proved effective?
Adjudicative processes
General expression of intention to use ADR
Mediation
General expression of intention to take an effective part in a non-adjudicative ADR process
Expert determination
If there's no pre-agreement, which of the following is NOT an advantage of actively considering ADR at an early stage?
This provides best opportunity to save time and costs
Some non-adjudicative ADR (e.g. ENE) is by its nature most effective if it's incorporated into a case reasonably quickly
Acting in the best interests of the client
Can clarify issues even if you don't reach settlement
A constructive approach may help to ensure that the views of parties don't become entrenched
Each party consider and make/respond to a proposal for the use of appropriate ADR at the pre-issue stage, or record reasons why ADR was not appropriate?
Will a party who considers it inappropriate to try to settle a claim at the directions questionnaire stage by asked to give reasons as to why it is considered so?
On allocation to the multi-track, the court won't give case management directions, based on relevant model and standard directions which may include direction in relation to the use of ADR
Can the court order that a party/their representative attend court?
On an application for an interim order the court may give directions to support the use of ADR
Can the court order trial of a preliminary issue if the rest of a case might then settle?
When is it reasonable to refuse to agree to use ADR?
Until after a key court decision
Until all stages of litigation up to and including exchange of witness statements are completed
Before issues are clarified in the statements of case
Before witness statements are available
Settlement at the door of the court isn't common
It's reasonable to refuse to mediate because costs already exceed the amount in issue
There is no presumption that litigation should continue unless ADR is shown to be preferable
The decision whether ADR is appropriate at a particular time is an objective and strategic one as regards how the case should most appropriately be pursued
Once statements of case are in place, will the issues be sufficiently clear for ADR to be used?
What information needs to be made available for the case to be sufficiently evaluated before a dispute can be properly resolved?
Strength of case
Remedies
Parties' intentions
Is it essential to prove a case in non-adjudicative ADR?
It is essential for a lawyer to wait until full disclosure is complete to evaluate a case
In adjudicative ADR, appropriate evidence may need to be made available to the decision-taker
ADR may not be undertaken once an interim order has been sought
In adjudicative ADR an arbitrator may have interim powers, but interim orders could not be made by a mediator
The court will not necessarily see the strength of a case as justifying a refusal to use ADR
Antagonism between parties definitely rules out ADR if other factors indicate it might be appropriate
The lawyer must ensure that the client is sufficiently are of ADR alternatives to litigation
The lawyer doesn't need to provide objective information on relevant ADR options
The lawyer needs to advise the client on pre-action obligations, as well as obligations under the overriding objective in relation to ADR
The client doesn't need to be made aware of funding, costs or penalties
The lawyer must advise the client on the strengths and weaknesses of a case
The lawyer must advise on and draft terms of settlement
Which of the following is NOT within the role of the lawyer in non-adjudicative ADR processes?
Case analysis
Identifying and formulating offers
Evaluating proposals from other side
Giving own opinion on the case
Ensuring terms are clear and comprehensive
Negotiating with the other side
In ADR generally, any agreement reached should be within the parameters set by who?
Neutral 3P
Lawyers
Client
A lawyer negotiating on a client's behalf should only reach a final agreement if so authorised by the client
In negotiating as an agent, will a lawyer normally have apparent authority to settle on behalf of the client?
Can a limit on authority to settle be exceeded?
What are the main elements of the role of a lawyer in advising on terms of settlement?
What terms might be acceptable on each issue
Precise wording of terms
Giving their opinion on the case
Reasonableness and comprehensiveness of the overall settlement
Advising on the most sensible settlement
Details of terms
Any matters relating to enforcement
In what form settlement is best recorded
An ADR process isn't based on a contractual agreement between the parties
ADR processes are less structured than litigation and are therefore not robust
Control of an ADR process lies primarily with the parties
ADR may not be used as a delaying tactic
If a court has positively supported the use of ADR, a refusal to use it will more readily be seen as being unreasonable
Which of the following will a lawyer NOT be liable for?
Failing to provide suggestions for settlement
Failing to give a client sufficient advice on ADR options in a case where the use of ADR would be in the client's interests
Failing to give advice on merits of the case
Failing to get sufficiently clear instructions
Failing to advise a client about the risks of unreasonably refusing to use ADR
Failing to enable a client to reach a settlement
Giving clearly inadequate advice on the appropriateness of proposed settlement terms or enforcement issues
If a party voluntarily agrees to use an ADR process, and/or voluntarily agrees the outcome of a non-adjudicative process on the basis of adequate advice, it won't be difficult for that client to raise any complaint, or to show causation of any loss
Any 3P involved in an ADR process might separately be liable for breach of contract or negligence
In which of the following situations may a lawyer be liable for negligence in relation to ADR?
Advises client to accept too low a sum
Fails to investigate facts properly, so client recovers less than should have been recovered
Fails to pass important information to a client
Fails to make client aware of implications of unusual terms in an agreement
Undertakes responsibilities in relation to an agreement, but is responsible for a breach of what was undertaken
ADR processes are normally what?
Public
Private
ADR processes are normally protected from publicity by confidentiality clauses
The 'without prejudice' principle means what?
Communication made in a genuine attempt to settle can normally be referred to in court proceedings
Communication made in a genuine attempt to settle can't normally be referred to in court proceedings
Additional X for communications between a lawyer and client is provided by the principle of legal professional privilege. What is X?
Complication
Secrecy
Protection
In ADR, there is a general right to privacy
Which of the following are difficulties arising from the confidentiality of ADR processes?
There may be a dispute about the precise terms of a settlement which can't easily be resolved without reference to the ADR process
Settlement might be challenged on the basis it was reached improperly
If ADR process isn't successful, a party may wish to use a communication made during the process as evidence relevant to an issue in the course of litigation
Is there a general duty of disclosure in ADR?
Which of the following is NOT a means by which information is shared in ADR?
By agreement
On a voluntary basis
By court ruling
As a reaction to developments in the process
In mediation, the position will be governed by the mediation agreement, and any published rules of the mediation provider selected.
For arbitration and other adjudicative processes, the parties will normally agree on the extent of mutual disclosure
For other types of evaluation or determination, parties won't agree what material is given to the 3P
Legal professional privilege is the privilege of X and can be waived by X. What is 'X'?
The client
The lawyer
The 3P
Information can be made privileged simply by being raised with a lawyer if it's otherwise disclosable.
Where information/advice sought from a 3P (such as an expert), may privilege be claimed for a communication between a client or lawyer and a 3P?
Legal professional privilege will apply to a meeting between lawyers and clients on opposing sides of a case
The intention of the 'without prejudice' principle is to protect from disclosure any communication made between parties with a view to settling a case
Will any oral or written communication passing between parties made in a genuine attempt to settle a dispute be protected from disclosure in the current and any subsequent proceedings between the same parties and subject matter?
The WP principle is that if no agreement is reached a communication made in an attempt to settle cannot be used in court, either in X or in Y by lawyers. What are 'X' and 'Y'?
Evidence and reference
Contention and discussion
Cross-examination and negotiation
The privilege is essentially joint and shouldn't normally be waived by one party alone
If the parties agree to waive privilege so that information can be put before a court, the protection can be claimed by a 3P such as a mediator or evaluator
It's possible to exclude protection for specific purposes
In order to be able to refer to a without prejudice letter when costs come to be considered, the letter must expressly be made without prejudice save as to costs
In family cases, the Cafcass officer and any mediator won't be protected from disclosure in any subsequent hearing before another judge
Without prejudice provides protection from disclosure where a communication is made with a view to settlement
In cases where there is an allegation of some improper conduct during a settlement process, will the court normally uphold the principle that communication within a settlement process shouldn't be disclosed?
Confidentiality is the norm within ADR
Will an agreement to use arbitration or mediation normally include a confidentiality clause?
A confidentiality clause won't commonly bind the parties to a dispute, and any 3P facilitator or decision-taker
A confidentiality clause must be express
There is no principle that will necessarily protect privacy if someone else at the ADR process were to make something public
In negotiation, information disclosed during a negotiation between lawyers may be protected by professional conduct responsibilities
If other people take part in a negotiation, information will always be protected unless those involved are bound by contractual confidentiality
In mediation, a confidentiality term in an agreement will normally protect any communication between the parties, and between each party and the mediator from being revealed.
In negotiation, where a communication takes place between a party and the mediator in a private meeting, that communication should only be revealed to the other side with the agreement of the party making the communication should only be revealed to the other side with the agreement of who?
All parties
The party making the communication
The negotiator
Experts, ENE and ED: Information may not be provided to a 3P in various circumstances in relation to an ADR process
Experts, ENE and expert determination: The confidentiality of the information provided to a 3P in these ADR processes is best protected through what?
A verbal agreement
An agreement with all parties
A term in the agreement with that individual
Experts, ENE and expert determination: One party may provide information that the party wishes to be kept confidential in relation to another party
Arbitral proceedings are private and confidential
Adjudicative processes such as arbitration are normally based on what?
Verbal agreement
Written agreement
Deployment by a party of its own documents in an arbitration clothes those documents with any confidentiality that they didn't already possess
In an adjudicative process it's not normally possible for one party to provide confidential information to the tribunal which isn't disclosed to the other side
Which of the following are the principal cases where disclosure may be permitted?
Where there's consent
Where the interests of justice require it
Where a court grants permission
Where the parties agree to it
Where disclosure is reasonably necessary for the protection of the legitimate interests of an arbitrating party
Duties in relation to explaining the potential expense of a dispute resolution process to a client applies throughout a case, so adequate advice on the comparative expense of different relevant processes should potentially be provided more than once
How is an ADR process normally paid for?
Equally the parties
By the party brining the claim
By the party defending the claim
Do the use of DBAs and fixed fees provide incentives for early settlement?
Which one of the below is NOT a reason why an ADR may be cost effective?
ADR processes can often be completed for a fixed fee
Parties can avoid/control the expense of processes such as disclosure
Parties can (to a certain extent) control related expenses through the agreement they make as to the ADR process to be used
Parties can choose the cheapest ADR option possible
What are the main elements of expense for an ADR process?
Fee for ADR process
Fee for opting for ADR rather than litigation
Sum due for location of place where process is held (if any)
Parties' travel expenses
Brief fee, if counsel instructed in connection with ADR process
Lawyers' fee to cover preparatory work and advice
Expenses of parties and lawyers attending ADR process
Expenses of anyone else asked to attend ADR process
Negotiation will be most cost-effective if carried out through the use of written offers/in a telephone conversation
Parties won't be liable for their own expenses for a negotiation
If the negotiation doesn't result in settlement, expenses related to negotiation may form part of the costs of the proceedings
In a challenging case, a more experienced and specialist mediator might be more likely to what?
Achieve success but increase costs
Achieve success and ultimately save costs
Within mediation, does what is included in the final fee need to be clarified before finalising an agreement to mediate?
...and whether the fee is for the process or is charged to the other party. The fee may cover only the cost of the time of the mediator, or a package may include a location for the mediation and other support services.
Liability for the fee of the mediator or the mediation service provider will not normally be covered by the written mediation agreement
The mediation fee will normally be shared equally
Arbitration is general less expensive than other forms of ADR
Payment of the arbitration fee will normally be covered by the arbitration agreement, which commonly provides for the fee to be shared equally by the parties
Which one of the following is NOT one of the main expenses involved in an arbitration?
Fee for arbitration itself
Fees of the lawyers (if there's a hearing)
Fee charged by neutral 3P
Expenses of parties (if there's a hearing)
Fee for application for an arbitration
Any funding agreement should envisage the possibility of what?
Need for expert evidence
Settlement
Need for a hearing
Cost of an ENE, expert determination or adjudication will depend on whether the process agreed is paper-based or includes oral evidence and representations
ENE, expert determination and adjudication: A fee isn't likely to be charged for finding a suitable 3P
After the event (ATE) insurance is necessary if a case is settled before issue
It's increasingly common for high value cases to be funded by 3Ps, who will bear the expense of dispute resolution in return for a share of what?
Damages recovered
Profit gained
Costs incurred
In conditional fee arrangements (CFA) will the client pay legal fees if the claim is lost?
CFAs: Settlement of the case will normally mean that the fee and success fee are payable to the lawyer, depending on the outcome reached
A party using a CFA may take out ATE insurance to cover the potential liability to pay the costs of the other side if the case is won
QOCS will protect the party against what?
Liability for their own costs
Liability of costs for the other side
Liability of expenses incurred for the ADR process used
Damages-Based Agreements (DBA) provide that a range of specified information must be given before a DBA is entered into
A party with Legal Aid Agency (LAA) funding is in a relatively strong position in that the other side will face paying what even if they win?
The costs of the other side
Their own costs even if they win
Which of the following statements about LAA is NOT true?
A party in receipt of public funding can be required by the LAA to attempt mediation before litigation, unless the dispute isn't suitable
Funding will always cover a trial
LAA funding may cover the reasonable costs of negotiation or mediation if that is the most cost effective way of proceeding (but this should be checked in each case)
Funding may not cover a trial unless reasonable attempts to settle have been made
The costs of processes such as ENE or expert determination may be covered as a disbursement
The LAA must be told of a Part 36 offer, as the impact on success is relevant to funding. If an assisted party fails to beat a Part 36 offer they will have to pay the defendant's costs, and a case may need to be compromised to avoid such an effect
A lawyer has an obligation to report a refusal of any reasonable offer to settle, and funding may be withdrawn
Costs management applies to many MT cases commenced after 1 April 2013
The parties must exchange costs budgets in a set form with a statement of truth within 14 days after the service of the defence, with a simplified format where the costs do not exceed £25,000
Cases commenced after 1 April 2013 must be reasonably X and reasonable in Y, and Z to the sums in issue, the value of any non-monetary relief in issue, the complexity of the litigation, work generated by the paying party and wider matters such as public importance to be recoverable. What do 'X', 'Y' and 'Z' stand for?
Pursued, amount and proportionate
incurred, amount and proportionate
Incurred, size and proportionate
Incurred, amount and fair
An ADR process is likely to need to take into account what?
Chances of success
Risk of losing
Damages realistically claimed in the case
Extent to which expense has already been incurred
Possibility that liability for costs may shift
Comparative cost of litigation and of an appropriate ADR process
Extent to which it may be possible to manage risk, for example through a Part 36 offer
Failure to comply sufficiently with relevant requirements of the Practice Direction Pre-Action and any relevant Pre-Action Protocols would not become an issue in litigation
An existing contractual agreement may not provide for the immediate use of ADR, specifying a particular ADR process to be used, or steps that need to be undertaken before litigation can be commenced.
Making a Part 36 offer alone may not be considered a reasonable attempt to use ADR prior to the issue of proceedings as it doesn't provide for the exploration of issues or options
If no proceedings have been issued can the court normally be involved in making a consent order?
Where a non-adjudicative ADR process such as negotiation or mediation has been used, a settlement reached before any proceedings have been issued will normally be recorded as a contract
Where an adjudicative process has been used, can the resulting decision equally be enforceable on the basis of contractual principles?
In a settlement reached without issue of proceedings the court will normally have no power to make any order as to costs
If there is an agreement on all issues, including who should pay costs, and that is recorded in writing save that the amount has not been agreed, can proceedings be brought for the assessment of costs?
Which of the following can a court take into account if proceedings are later issued?
Offers to settle
Conduct of the parties at the pre-action stage
Conduct of the parties during proceedings
Which of the following is NOT a core requirement of the Practice Direction?
Exchange of letters setting out sufficient details of the matter
Parties to consider whether they can make a Part 36 offer
Encouraging the parties to exchange sufficient information about the matter in dispute
Parties to consider whether some form of ADR process might enable them to settle the matter
What might reasonable consideration of the use of ADR before claim include?
Advice from the lawyer to the client on the potential benefits of ADR
If no ADR is thought appropriate, the reasons why
If the other side refuse to use ADR, providing reasons outlining why they have acted unreasonably
Assessing costs
Provision of sufficient information of the matters in dispute
Responding to a proposal in relation to ADR made before claim might include what?
If proposal accepted, any terms in relation to the acceptance
Suggestion of a more appropriate form of ADR
If proposal refused, sufficient reasons to show refusal is reasonable
Request for further information before a decision on ADR is taken
A court may be slow to accept non-compliance that isn't clearly justified
Which of the following is NOT a potential justification for non-compliance?
If the relevant limitation period is about to expire it may be necessary to issue proceedings to ensure they are issued in time
A need to take action urgently
Non-compliance by another party
If parties fail to act reasonably and proportionately in actively seeking to settle their dispute, they may find that the court will be increasingly willing to penalize their conduct by doing what?
Ordering that they pay their own costs
Making an adverse costs order
Ordering that they pay everyone's costs
In Halsey v Milton Keynes, the compulsion of ADR would be regarded as an X Y on the right of access to the court and, therefore, a violation of Article 6 of the ECHR. What do X and Y stand for?
Fundamental constraint
Unacceptable constraint
Unacceptable hindrance
A mandatory order directing the parties to take part in a non-adjudicative ADR process, such as mediation, may not be a breach of Article 6 provided the parties can still continue with court proceedings if they failed to what?
Agree on which ADR process to use
Pay costs
Reach a settlement
In some cases there is a requirement of mandatory consideration of mediation
Furthering the overriding objective does not include encouraging parties to use an ADR procedure if the court considers that appropriate
The court has to accept the reasons put forward by any of the parties for refusing to try to settle the action or consider ADR at the Directions Questionnaire stage.
A stay avoids the need for a party to prepare for the ADR process and the various stages of the litigation process at the same time.
A stay will be for a period of how long?
14 days
28 days
1 month
If a stay is granted for ADR to be attempted, the parties must keep the court informed about the outcome of the ADR process.
If no settlement is reached during the ADR process, will the parties need to formally dispose of the court proceedings?
If no settlement is reached during the ADR process, then the parties will need to apply to the court to get the stay lifted (if it hasn't expired)
The court may give effect to ADR by upholding and enforcing ADR clauses
What might an ADR clause include?
It may define a particular ADR method which should be used
It may specify who pays what costs
It may specify a number of methods that need to be exhausted in turn before litigation can be commenced/continued
If an adjudicative form of ADR procedure is specified by the clause, the clause may also specify that the parties are to be bound by the decision
The court will give effect to ADR clauses regardless of the type of ADR process that the parties have agreed to use
The procedure set out in the contract does not need to be clear and unambiguous in order to be enforceable
Provided the clause is sufficiently clear, in exercising its discretion to enforce such clauses by staying proceedings commenced in breach of the clause, which of the following factors will the court NOT consider?
Extent to which parties have complied with the requirements in any pre-action protocol
The desired outcome of the agreement for both the parties
Whether the dispute is suitable for determination by the agreed ADR process
Costs of that ADR process compared to the costs of litigation
Whether a stay would accord with the overriding objective
Each party will be liable to pay their own costs and expenses in relation to an ADR process
The possibility that liability for expenses, and costs incurred may shift to another party is not an important consideration in comparing the use of litigation and ADR.
Costs can be shifted in and in relation to the use of ADR through the use of what?
Part 36 offer
QOCS
General powers of the court in relation to sanctions and costs where there has been a failure to make reasonable use of ADR
The parties can explicitly agree in advance that if the ADR process fails the court will have a discretion as regards costs if they so wish
In non-adjudicative ADR, whatever is agreed as regards expenses can't be varied by agreement
A set figure can be agreed in relation to costs, or a simple process for determining what should be paid
In arbitration, can the parties agree to give the arbitrator/adjudicator power to award costs?
Other than in arbitration, the 3P will only have such power in relation to costs as the parties agree
If the dispute is not fully resolved through ADR and litigation continues, will the general discretion of the court in relation to costs under Part 44 apply?
When making a costs order, the judge will have regard to all the circumstances, including what?
The conduct of all the parties
The reasonableness of the parties
Any admissible offer to settle
Whether a party has succeeded in part of his or her case
Where a case is settled prior to the issue of proceedings the powers of the court are unlimited
If an ADR process fails, the court is likely to regard itself as bound by any contractual agreement that has been made by the parties as regards the expense of ADR
Where settlement has been reached after the issue of proceedings, the court should be informed
It is possible for a court to make a decision on costs alone where the parties have reached agreement on all other matters, either by agreement, or for example if an expert determination has been made by a person who wasn't given authority to make a decision as to costs. Which one of the following principles will NOT be applied?
The court should award costs in a way that is fair and reasonable in the circumstances
The court has power to make a costs order when the substantive proceedings have been resolved without a trial but the parties have not agreed costs
The overriding objective is to do justice between the parties without incurring unnecessary court time and consequently additional cost
In the absence of a good reason to make any other order, the fall-back position is to make no order for costs
Are the costs of interim applications made in connection with the use of ADR subject to the normal court discretion?
A party's expenses in relation to ADR can't be recovered as damages in subsequent litigation against a 3P
Will the expenses of a separate ADR process remain a matter of any agreement made by the parties?
There is no distinction between the costs of the ADR process (which will fall as agreed in the ADR agreement) and the other costs of the case
If the amount of costs payable isn't agreed or specified it will need to be assessed.
If the terms proposed are accepted the dispute is resolved, but a Part 36 offer may also what?
Initiate an ADR process to refine the terms offered
Be used to protect a party's position after an unsuccessful ADR process
Offer an earlier opportunity to resolve the dispute
Costs shifting is the norm in many forms of ADR
An offer that doesn't meet all Part 36 requirements will stand as an offer without Part 36 consequences
An offer to pay the full amount claimed is still a Part 36 offer
Once made, a Part 36 offer stays in effect and can be accepted after the relevant period
The effect of QOCS is that a claimant can still recover costs if successful, but will generally be at risk of having to pay the defendant's costs if the claim fails
The court can penalize a party when they unreasonably refuse to...
Comply with an order made by the court directing the parties to attempt to resolve the dispute by ADR
Accept an offer made by the other side to attempt to settle the dispute using an ADR process before the issue of proceedings
Accept an invitation by the other side to use an ADR process during the course of litigation, or even after judgment and prior to the hearing of an appeal
Which one of the following orders can a court can make when penalizing a party?
Depriving a party of costs (even if they're successful in the litigation)
Ordering them to pay some or all of the other side's costs (even if successful)
Ordering them to pay costs on an indemnity basis
Ordering them to pay costs on the standard basis
Ordering a higher rate of interest to be paid on damages awarded
Depriving a party of interest on damages awarded by the court
Non-compliance can include an unreasonable refusal to consider ADR
Which one of the following is NOT a sanction that a court can impose for non-compliance with the protocols?
Staying the proceedings
Defendant pays damages at a lower rate
Ordering that the party at fault pays the costs/part of the costs, of one or more of the other parties
Party at fault pays costs on an indemnity basis
Claimant denied interest on all/part of the sum/interest at a lower rate
Defendant pay damages at a higher rate (not exceeding 10% above the base rate)
In Halsey v Milton Keynes, it was held that the court will consider what in showing the party acted unreasonably, and thereby the general rule that costs follow the event should be departed from?
Nature of the dispute
Merits of the case
Whether the costs of the ADR process would be disproportionately high
Behaviour of the parties
The extent to which other settlement methods have been attempted
Attempts to settle
Whether any delay in setting up and attending ADR would have been prejudicial
Whether the ADR process had a reasonable prospect of success
The Halsey factors do not apply where a claimant pursues proceedings rather than consider ADR through a compulsory scheme established by the Financial Services Authority
In what situations will ADR not be appropriate?
Where court is required to determine issues of law or construction
Legal precedent is necessary
Issues involving allegations of fraud/commercially disreputable conduct may be raised that require resolution at trial
Urgent injunctive relief
A search order or a freezing order may be required
Point of law may need to be resolved
Case may be a test case
Case is technically complex
A party's belief that the case was strong is likely to be a sufficient justification for refusing ADR
A successful party will not be deprived of some or all of their costs for rejecting mediation if the claim did not warrant any issues of sufficient substance to justify mediation
Every mediation has to end with a payment to the claimant
Where the parties have shown a genuine and constructive willingness to resolve the issues between them, will the successful party automatically be penalized for not agreeing to a form of ADR proposed by the other side?
It may not be reasonable for a successful party with a strong case to refuse to engage in mediation where they had indicated at all times that they were prepared to engage in without prejudice discussions and there was no good reason why that approach should not be tried
A successful party may be penalised in costs for rejecting mediation, even if they have made an effective Part 36 offer or unreasonably refused an offer to settle made outside the regime in Part 36
Who is the burden on to show that an ADR process such as mediation would have had a reasonable prospect of success?
Successful party
Unsuccessful party
Where there's no objective reason to conclude that ADR has no reasonable prospect of success, this burden will not be discharged
Apart from the Halsey factors, what other factors will be taken into consideration in deciding whether a party was unreasonable in refusing ADR?
Whether an ADR order had been made by the court
Whether further information or expert evidence needed to be obtained and/or disclosed before ADR was undertaken
The impact that Part 36 offers have on a refusal to engage in ADR
Whether another form of ADR would have been more appropriate than the one proposed
Can the court penalize a successful party for refusing to use mediation, even if they had made other reasonable attempts to settle the matter such as making a Part 36 offer which the party does not beat at trial?
There is a distinction between cases where the unsuccessful party rejects an offer of ADR made by the other side and where there's been a failure by the successful party to initiate ADR proceedings
The courts are prepared to penalize a party in costs if they failed to make any offer or a reasonable offer to settle the claim
Where the unsuccessful party has unreasonably delayed in consenting to mediation, this won't lead to an adverse costs order
Where both parties are at fault, the court may penalize both of them by refusing to make any costs order at all, whatever the outcome of the case
The court won't penalize a successful party by depriving them of the costs of the appeal for refusing ADR after trial and pending an appeal
Can the court penalize a successful party for agreeing to explore settlement in an ADR process, and then backing out of it at the last moment?
It is likely that the court can only enquire into conduct that took place in the mediation if all parties to the mediation consent to waive privilege and confidentiality
The court can't make an indemnity costs order where there is unreasonable conduct to a high degree
Which one of the following is NOT a circumstance in which the requirements for making an indemnity costs order could be met?
Where a party has refused to partake in a particular ADR process
Where there has been an unreasonable failure to accept offers of settlement
Where a party has resisted a sensible approach to finding a solution to the proceedings
If there are legitimate difficulties in using ADR, these can only be overcome if they are addressed at the time
Are communications passing between the parties that are aimed at settlement privileged from disclosure?
If a party makes an offer to explore settlement using some form of ADR process, they should make sure that correspondence is marked 'without prejudice save as to costs'
What are the key features of negotiation?
Flexible process
Rigid process
Written communication
Oral communication
Written/telephone negotiations
Meetings
The negotiation process is subject to contractual principles
It will be a matter of fact when terms are sufficiently clear and have been accepted so that a binding agreement has been reached
In negotiation, any agreement reached by the lawyer will bind the client unless it has been agreed in advance that any terms agreed will be subject to client approval.
Which of the below are key ethical principles in negotiation?
Lawyer should have authority from the client to settle
Lawyers should act within instructions
Any limit on authority should be made clear in the negotiation if relevant
Duty not to mislead an opponent
Lawyer should respect confidentiality when negotiating
In negotiation, will the principle of without prejudice apply to all communications made as part of an attempt to settle a case?
A meeting to discuss 'battle tactics' rather than negotiate is privileged
There are specific requirements for the exchange of evidence in relation to negotiation.
Any document used in a negotiation which isn't otherwise disclosable will be protected by the principle of without prejudice
In negotiation, a lower number of participants will make the process more cost effective and easier to control.
There are formal rules for procedure in a negotiation
In negotiation, offers and concessions should be clearly stated whether in writing or orally to avoid any confusion
In negotiation, once agreed, does the settlement bind the parties immediately?
In negotiation, if agreed terms are not all incorporated into a later order, can they still be enforced if there's not been an agreement that only a final agreement in writing will be binding?
Mediation is effectively a facilitated and more structured form of negotiation
Which of the following DOES not describe mediation?
Confidential
Can be arranged speedily
Takes a long time to arrange
Neutral 3P facilitates discussions and negotiations between the parties in dispute
Structured but flexible process
Unstructured but rigid process
Formal setting
Defined period of time
In mediation, do the parties themselves remain in control of the issues they would like to discuss?
Which of the following is NOT a way in which mediation can assist the negotiation process between the parties?
Mediator can help parties to work through deadlock
Mediator adds a new dynamic and creates a balance between different negotiating styles and personalities of parties and their lawyers
Mediator can be skilled at managing and diffusing strong feelings that may be a barrier to reaching settlement
Mediator can give ideas to parties on how to resolve issues by putting forward their own views
Before the parties embark on mediation they should first attempt to settle the dispute by direct negotiation between them as this will normally be less expensive and may narrow issues
Is mediation suitable for all disputes which raise issues capable of being resolved by negotiation?
In mediation, the parties can't contractually bind themselves by a dispute resolution clause to attempt to resolve a dispute by mediation before embarking on litigation (or arbitration)
Mediation can be useful for resolving multi-party disputes involving multiple issues
Mediation doesn't need to be considered even if the court has encouraged or directed the parties to attempt settlement by mediation, or where the parties may face adverse costs orders or other sanctions if they unreasonably refuse to mediate
When can mediation take place?
At any stage up to trial
Even pending an appeal
Before trial begins
If mediation can't reasonably be undertaken before issue of proceedings, the best time to attempt it may be before exchange of statements of case or before disclosure of documents
The later the mediation takes place in the litigation, the greater the decrease in the costs savings that can result from a mediated settlement.
Which of the following can the court NOT do to make a party consider mediation?
Offer strong judicial encouragement
Compel parties to mediate
Make the consideration of mediation mandatory
Stay proceedings
Adverse costs orders if parties have acted unreasonably
Orders for advance disclosure of information/documents relating to one or more issues in the case
Which one of the following does NOT describe the mediator's role?
Overseeing the process
Organising the mediation process
Acting as facilitator during the process
Acting as intermediary between the parties
In acting as a facilitator, the mediator will encourage the parties to think about their BATNA and WATNA
A mediator may be rigorous and testing as 'devil's advocate', but should not do or say anything that gives the impression he or she is not impartial
What are the key ethical principles that a mediator must abide by?
Mediators must be competent and knowledgeable in the process of mediation
A mediator must ensure there's no conflict of interest with any of the parties directly or indirectly affected by the dispute
Mediator should ensure the parties understand the nature and purpose of the mediation process, the terms of the mediation agreement, fees payable and obligations of confidentiality imposed on parties and mediator
Mediator should act fairly between the parties, and be careful not to put any undue pressure on a party to settle the dispute
Mediator must keep confidential all information arising out of or in connection with the mediation (including that it's to take place/has taken place) unless compelled to give full disclosure on public policy grounds
Mediator must may every possible step is taken to enable the parties to reach a settlement
Mediator should terminate the mediation, and inform parties if appropriate that they believe a settlement to be unenforceable or illegal or it's unlikely that continuing will result in settlement
Parties do not have the right to withdraw from the mediation at any time
The duty of confidentiality will apply even after the mediation process has been completed or terminated
In mediation, the express or implied term of confidentiality exists between who?
Parties themselves
Parties and the mediator
In mediation, in which of the following circumstances may the court override confidentiality?
When it's necessary for them to ascertain what was said and done in the mediation (economic duress)
Action of one of/both the parties against the mediator for breach of contract/negligence
Action by a party against their solicitors for professional negligence arising out of their conduct of a claim which was settled at mediation/arising out of their conduct at the mediation
Which of the following is NOT another exception to confidentiality?
Disclosure required by law
Necessary to prevent risk of harm to public by large
Risk of to health, life or well-being of a person or threat to their safety if confidential information not disclosed
One party consenting to it
Preventing criminal activity
The without prejudice rule in mediation means that communications that take place in relation to or during the mediation which are made for the purposes of settling the dispute can be relied on or referred to in subsequent court proceedings if the mediation is unsuccessful
The mediation agreement itself is protected by the without prejudice principle
The without prejudice rule exists for the benefit of the parties and it can be waived by them
There are two main forms of mediation: facilitative and evaluative. Which is the norm?
Evaluative
Facilitative
The mediator, as a neutral or impartial 3P, helps the parties to solve their own problems by facilitating negotiations between the parties.
A facilitative mediator will focus primarily on the strict legal merits of the parties' positions, rather than the real interests and concerns of the parties
Which one of the following will a facilitative mediator NOT do?
Ask questions that test the strengths and weaknesses of each side's case
Help parties identify what they want to achieve from the dispute
Help the parties to work out a creative solution that's in their best interests
Discuss tactics with the parties about how best to achieve their desired outcome
Assist parties to negotiate more effectively by formulating offers in a way that may be more attractive to the other side
Helping parties consider the timing and staging of offers and concessions
A facilitative mediator is likely to exert less control over the process than an evaluative mediator
An evaluative mediator will go beyond the role of facilitator
An evaluative mediator may also be asked to recommend a form of settlement, or a range of options for that settlement
The mediator will not usually evaluate a claim or issue unless specifically invited to do so
In evaluative mediation, the mediator must take great care not to impose his or her evaluation or preferred outcome on the parties.
Depending on the nature of the dispute and the needs of the parties, it may be important for the mediator to have sound knowledge of the legal, technical, or factual issues in dispute.
Complex or multi-party disputes or international disputes won't require more than one mediator to be appointed
How long does a typical mediation last for?
Half a day
One day
Two days
If the parties require an expert to be present at the mediation should this be discussed with the mediator in advance?
If position statements are exchanged by the parties, there is no reason why an additional, confidential position statement should not be prepared for the mediator's eyes only
If there is no objection to disclosure, each party may wish to arrange for copies of documents to be sent directly to the other party or provide additional copies to the mediator or ADR provider with a request that they be sent to the other side.
When the mediation begins and ends can often only be ascertained by examining the intention of the parties from the facts and circumstances of the case.
Typically, how many stages will a typical mediation go through?
Two
Three
Four
Five
The opening stage consists of introductions and each party setting out their formal position in relation to their issues in the case
The exploration stage has to take place in an open joint meeting
The negotiating (bargaining) stage will usually take place in private meetings with the mediator acting as broker between the parties
The settlement (or closing) stage will usually take place in private meetings
At the conclusion of each party's opening statement, the mediator may ask questions to clarify anything which is unclear
The second party to deliver the opening statement has to respond to respond to the first party's statement
Separate private meetings tend to be the key stage in the mediation process
In some mediations, will it be beneficial for the parties to negotiate some or all of the issues directly with one another?
If a settlement is reached, the mediator will confirm the terms agreed with each of the parties
If a written signed agreement isn't drawn up at the mediation, there is no possibility that the parties may resile from the settlement before the binding agreement has been drawn up.
If no settlement is reached, the mediator usually will record this
In med-arb, the process provides that if no settlement can be agreed at the mediation, the parties may invite the mediator to act as arbitrator to determine the dispute and make an award that will be binding or non-binding as agreed by the parties
Arb-med does not reverse the med-arb process
The relative informality of some ADR processes compared to litigation can lead to less central issues being overlooked.
Where the agreement is essentially oral (e.g. as in negotiation or mediation, there may be a tendency to leave some points slightly vague to achieve an agreement
Which one of the following is NOT the responsibility of the lawyer to ensure in recording a settlement?
Terms are comprehensive
Teerms are sufficiently clear and detailed
Client accepts the agreement
Client approves of the agreement
Terms are appropriately enforceable
Terms are appropriately recorded
Client understands agreement
If there is disagreement between the client and their legal representatives over whether compromise terms should be accepted, consideration doesn't need to be given to the lay client's interests
A lawyer acting for a publicly funded client who doesn't accept an offer of settlement should warn the client that there must be a report to the Legal Aid Agency
Arbitration should not result in an award
Early neutral evaluation should result in a report from the neutral 3P
Successful mediations and negotiations normally result in an a written agreement
To avoid uncertainty, it 's not uncommon for mediation agreements to include terms that any compromise will only be binding if made in writing
A successful non-adjudicative ADR should result in a contract compromising the dispute.
Where the whole dispute is settled the compromise agreement won't normally be stated to be in 'full and final settlement' of the dispute.
A party who wishes to preserve their right to sue on other causes of action should expressly reserve that right in the compromise agreement
At the end of a mediation or negotiation it's crucial for all the parties to take time to agree a written version of the terms agreed.
When a final draft is agreed it will be signed by each party and copies are then made
There is a specific form of written or oral statement for setting out the terms of a settlement.
When a dispute relating to legal rights is settled it'll normally be in the interests of both parties to record the outcome in a form that's legally enforceable.
Non-adjudicative ADR processes often lead to oral contracts
An exchange of letters can form a contract in itself without any face-to-face ADR process where there's an appropriate offer and acceptance.
Non-adjudicative processes commonly lead to a formal written contract
In which of the following situations may a contract be appropriate?
Where the terms are complex
Where the parties require it as evidence
Where the outcome is particularly important
Where parties want a formal separate legal document for later reference
Where there's an ongoing commercial relationship
Court powers to award interest and make orders as to costs only apply to court orders
Agreed terms don't need to be enforceable
Where proceedings have been issued, can terms of settlement of a dispute following an ADR process be incorporated into a court order or judgment?
Can settlements restricted to common law relief (money; delivery of goods), the stay or dismissal of the case, and costs, be made as consent orders without involving a judge?
Which of the following is NOT a method of recording a settlement?
Recording the agreement in a Tomlin Order
Settlement agreement
Consent order staying all proceedings
Informing the court that no settlement has been made
Judgment for the agreed sum (and costs), subject to a stay of execution pending payment by stated instalments
Informing the court that the case has been settled on terms recorded in a contract
Informing the court that the case has been settled upon terms endorsed on counsels' briefs
Judgment for immediate payment of an agreed sum together with costs
The fact that a settlement is reached after proceedings have been issued means that the terms have to be recorded in a court order
Endorsement of settlement on backsheets: when is this method most appropriate?
Where the agreement is complex
Where the agreement is simple
Interim orders can be used to record compromise agreements once proceedings have been issued, and if there's been a pre-commencement application for an interim order.
Which one of the following is NOT normally dealt with on the face of a Tomlin Order?
Details of the terms of the compromise
Stay of the proceedings
Each party to have liberty to apply to the court
The payment and assessment of costs
A possible drawback of a Tomlin Order is that enforcement powers for the terms of the schedule are more limited than for the court order itself
Which one of the following is NOT an option for the future of the litigation?
Entry of judgment
Offering to settle
Discontinuing the claim
Dismissing the claim
Enforcement is of the compromise, decision, or award, rather than the original dispute
Insolvency is often an alternative to enforcement by proceedings in the civil courts
Which one of the following is NOT one of the factors which drive the use of online options for dispute resolution?
Disputes can be resolved quickly because of the flexibility offered
Disputes can be resolved cost-effectively as the expense of conventional processes can be reduced and streamlined
Parties tend to prefer online ADR
Software can provide sophisticated analysis of figures and risks
Which forms of ADR can be carried out online?
Negotiation
Expert evaluation
Arbitration
Offer and acceptance
Early Neutral Evaluation (ENE) is an assessment and evaluation of the facts, evidence and/or the legal merits of one or more of the issues in the case or of the case as a whole.
It's usually undertaken on behalf of the parties separately
Why is ENE different from mediation?
Mediation is a facilitative process; ENE is an advisory and evaluative process
Mediation is an advisory and evaluative process; ENE is a facilitative process
Mediation is an advisory process; ENE is an evaluative process
Can ENE take place within the court system?
ENE can be employed at any stage of the dispute
ENE is particularly useful where one or more of the parties has taken an unrealistic and entrenched view of one or more of the issues (or of the case as a whole)
The parties can't control the amount and form of the information that is placed before the evaluator
In ENE, the evaluator will evaluate the evidence (oral and/or written) and the law bearing in mind the submission of each party and produce a recommendation setting out his or her assessment of the merits of the dispute and the likely outcome of it.
In ENE, the evaluation is binding and the parties have to accept it
Conciliation is a facilitative dispute resolution process in which a neutral 3P seeks to assist the parties to reach a settlement
Which of the following describe conciliation?
Adjudicative
Non-adjudicative
Without prejudice
Which one of the following is NOT a typical outcome that may be available in an individual matter under different complaints and grievance processes?
An explanation
An apology
Compensation
Reduction of a bill or a refund
A small gift
Disciplinary action
Expert determination is a process in which an expert (or a neutral) is appointed to make a determination on the issues referred to him or her by the appointing parties
Expert determination is commonly employed in cases of a technical nature where the parties are likely to benefit from a determination by an appropriate expert such as an accountant, surveyor, or engineer
In expert determination, parties may not contractually bind themselves
Where the parties use expert determination to resolve a dispute, they usually agree that the determination is final and binding on them, and typically this recorded in the contract.
Expert determination is subject to the supervision of the court
In ED, where the determination is to be final and binding on the parties, the contract may provide for some exceptional circumstances in which the determination can be challenged
In ED, the expert is acting as the decision-maker, not as a witness
Expert determination is a useful and cost-effective way of determining disputes of a highly technical nature
ED is most commonly used where the parties agree in advance in the underlying contract between them to use ED to resolve a dispute arising out of the contract
Which one of the following matters will NOT be taken into consideration when drafting the contractual provisions relating to ED?
The type of dispute that may be referred for ED
Qualifications of the expert
The need for the person so appointed to act as an expert and not an arbitrator
Machinery for appointing the expert
Whether further ED may be required
Procedure that should be followed for the determination
Extent to which the parties are to be bound by the determinator
Extent to which they may be exceptions to the final and binding nature of the award
In ED, can the parties retain a degree of control over the process and the appointed expert will usually seek to agree any appropriate procedural directions with the parties?
In ED, the parties aren't under an implied duty cooperate with each other and with the expert in relation to the determination
In ED the parties won't usually agree that the decision will be binding on them
If one party refuses to comply with an ED clause in the contract, the other party may be entitled to damages for breach of contract
In DE, reasons need only be given for the determination if the contract so provides
The parties may agree in their contract that the expert's decision will only be binding on them in the absence of manifest error
In DE, the decision can't be challenged if the expert has departed from his or her instructions in a material way
In DE, a failure by one side to honour the decision will not amount to a breach of contract
Arbitration involves an impartial arbitrator or tribunal considering both sides of a dispute and making decision on the issues raised by the parties
Which of the following principles under the Arbitration Act 1996 are arbitrations subject to?
The object of them is to obtain the fair resolution of disputes by an impartial tribunal without unnecessary delay or expenses
The parties should be free to agree how their disputes are resolved
The court shouldn't intervene except as provided by the Act
In order for there to be an effective reference to arbitration, what requirements must be met?
Must be a dispute or difference
Dispute must be 'arbitrable' (i.e. needs to be a private law dispute rather than public one or one relating to legal status)
Must be an agreement to arbitrate
Agreement to arbitrate must be in writing
Nature of dispute must come within the terms of the arbitration agreement
Parties must find an arbitral tribunal willing to act and decide the dispute
Dispute must come within terms of the particular reference to arbitration
Almost all types of dispute can be referred to arbitration
If the arbitration is of some complexity, would it be sensible to hold a pre-trial hearing/conference?
Which one of the following is NOT a type of award available to arbitrators?
Summary awards
Procedural orders
Interim awards and awards on different issues
Main awards
Costs awards
Cross-border enforcement of arbitral awards can usually be achieved through the New York Convention 1958
