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RODOC quiz BPTC

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BPTC RODOC Quiz on RODOC quiz BPTC, created by Jennifer Moles on 03/02/2015.
Jennifer Moles
Quiz by Jennifer Moles, updated more than 1 year ago
Jennifer Moles
Created by Jennifer Moles over 9 years ago
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Resource summary

Question 1

Question
What is the definition of ADR?
Answer
  • 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

Question 2

Question
What are the key points about ADR procedures? (4 points)
Answer
  • 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

Question 3

Question
ADR is compulsory
Answer
  • True
  • False

Question 4

Question
The court will consider communications made during an ADR process
Answer
  • True
  • False

Question 5

Question
ADR options can only be used with agreement of the parties
Answer
  • True
  • False

Question 6

Question
In adjudicative ADE an independent 3P reaches an impartial decision on a dispute
Answer
  • True
  • False

Question 7

Question
Adjudicative ADR provides less flexibility and less privacy than litigation
Answer
  • True
  • False

Question 8

Question
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
Answer
  • True
  • False

Question 9

Question
The parties can't agree what material should be available should be available to the 3P
Answer
  • True
  • False

Question 10

Question
An adjudicative process won't be subject to court oversight
Answer
  • True
  • False

Question 11

Question
Adjudicative processes won't be conducted in private
Answer
  • True
  • False

Question 12

Question
How many arbitrators may conduct an arbitration?
Answer
  • One
  • One or more

Question 13

Question
The process to be followed won't be agreed in advance by the parties
Answer
  • True
  • False

Question 14

Question
An arbitration may only involve a hearing (broadly similar to a trial)
Answer
  • True
  • False

Question 15

Question
Arbitration is commonly used in commercial cases
Answer
  • True
  • False

Question 16

Question
What are the main attractions of arbitration?
Answer
  • 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

Question 17

Question
What are the potential drawbacks of arbitration?
Answer
  • 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.)

Question 18

Question
What does an adjudication involve?
Answer
  • 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

Question 19

Question
Arbitration is most likely to be appropriate in a specialist commercial field
Answer
  • True
  • False

Question 20

Question
An adjudication process should not be agreed between parties in a binding form
Answer
  • True
  • False

Question 21

Question
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
Answer
  • True
  • False

Question 22

Question
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
Answer
  • True
  • False

Question 23

Question
Offer and acceptance is the simplest form of non-adjudicative ADR
Answer
  • True
  • False

Question 24

Question
In offer and acceptance, an offer can't be accepted orally
Answer
  • True
  • False

Question 25

Question
Offer and acceptance is most suited to a case with complex issues
Answer
  • True
  • False

Question 26

Question
An offer made in an attempt to settle will be protected by without prejudice privilege
Answer
  • True
  • False

Question 27

Question
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
Answer
  • True
  • False

Question 28

Question
Negotiation is the least common form of ADR
Answer
  • True
  • False

Question 29

Question
A mini trial may be arranged to determine what?
Answer
  • Specific issues
  • Costs

Question 30

Question
In a mini trial, each side makes summary submissions, and the senior officers seek to reach an agreement
Answer
  • True
  • False

Question 31

Question
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
Answer
  • True
  • False

Question 32

Question
Conciliation normally involves a neutral 3P
Answer
  • True
  • False

Question 33

Question
In conciliation, the conciliator might propose a decision if the parties can't reach one, and this may be binding
Answer
  • True
  • False

Question 34

Question
Non-adjudicative ADR or expert determination can potentially take place very quickly, and soon after a dispute arises
Answer
  • True
  • False

Question 35

Question
An ADR process isn't subject to contractual agreement between the parties
Answer
  • True
  • False

Question 36

Question
If an adjudicative process is used, control of process will often pass to the individual reaching a decision once the parties have agreed process
Answer
  • True
  • False

Question 37

Question
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
Answer
  • True
  • False

Question 38

Question
Non-adjudicative ADR can potentially take place very quickly, and soon after dispute arises
Answer
  • True
  • False

Question 39

Question
In non-adjudicative ADR, the parties can't agree the process to suit their needs
Answer
  • True
  • False

Question 40

Question
Id adjudicative ADR is used, control of process will often pass to the individual reaching a decision once the parties have agreed the process
Answer
  • True
  • False

Question 41

Question
In adjudicative ADR a more flexible process can be agreed, and in non-adjudicative ADR the process is normally very flexible
Answer
  • True
  • False

Question 42

Question
Confidentiality is protected more through litigation than through ADR
Answer
  • True
  • False

Question 43

Question
In non-adjudicative ADR, parties can't agree any terms they wish
Answer
  • True
  • False

Question 44

Question
An ADR process may be more effective than litigation in preserving a relationship and reaching a settlement that best reflects future interests
Answer
  • True
  • False

Question 45

Question
ADR can be less constructive than litigation
Answer
  • True
  • False

Question 46

Question
Risk may be more directly controlled through constructive and proactive use of ADR
Answer
  • True
  • False

Question 47

Question
Which of the following are criteria which may be relevant to selecting the most appropriate form of ADR?
Answer
  • 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

Question 48

Question
If the main objective of the party is to decide on an appropriate sum of compensation, any ADR process may be apropriate
Answer
  • True
  • False

Question 49

Question
Mediation with an effective mediator won't prove effective in helping a party to see the strengths and weaknesses of a case more objectively
Answer
  • True
  • False

Question 50

Question
What factors may mean that ADR is not appropriate?
Answer
  • 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

Question 51

Question
At what time can ADR be used?
Answer
  • 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

Question 52

Question
What does dealing with a case 'justly' include?
Answer
  • 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

Question 53

Question
Waiting until after exchange of particulars of claim and documents before attempting ADR can mean that attitudes of parties have hardened and what?
Answer
  • Costs have grown (level of which may threaten successful ADR)
  • Parties may abandon claim altogether

Question 54

Question
Decisions about ADR may need review as relevant factors will change over time
Answer
  • True
  • False

Question 55

Question
Records of attempts to use ADR shouldn't be kept
Answer
  • True
  • False

Question 56

Question
Communications made with a view to settlement are privileged
Answer
  • True
  • False

Question 57

Question
If a clause is sufficiently clear and is contractually binding, is a court likely to enforce the clause if necessary?
Answer
  • Yes
  • No

Question 58

Question
In which situations have clauses providing for pre-selection of ADR proved effective?
Answer
  • 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

Question 59

Question
If there's no pre-agreement, which of the following is NOT an advantage of actively considering ADR at an early stage?
Answer
  • 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

Question 60

Question
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?
Answer
  • True
  • False

Question 61

Question
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?
Answer
  • Yes
  • No

Question 62

Question
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
Answer
  • True
  • False

Question 63

Question
Can the court order that a party/their representative attend court?
Answer
  • Yes
  • No

Question 64

Question
On an application for an interim order the court may give directions to support the use of ADR
Answer
  • True
  • False

Question 65

Question
Can the court order trial of a preliminary issue if the rest of a case might then settle?
Answer
  • No
  • Yes

Question 66

Question
When is it reasonable to refuse to agree to use ADR?
Answer
  • 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

Question 67

Question
Settlement at the door of the court isn't common
Answer
  • True
  • False

Question 68

Question
It's reasonable to refuse to mediate because costs already exceed the amount in issue
Answer
  • True
  • False

Question 69

Question
There is no presumption that litigation should continue unless ADR is shown to be preferable
Answer
  • True
  • False

Question 70

Question
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
Answer
  • True
  • False

Question 71

Question
Once statements of case are in place, will the issues be sufficiently clear for ADR to be used?
Answer
  • Yes
  • No

Question 72

Question
What information needs to be made available for the case to be sufficiently evaluated before a dispute can be properly resolved?
Answer
  • Strength of case
  • Remedies
  • Parties' intentions

Question 73

Question
Is it essential to prove a case in non-adjudicative ADR?
Answer
  • Yes
  • No

Question 74

Question
It is essential for a lawyer to wait until full disclosure is complete to evaluate a case
Answer
  • True
  • False

Question 75

Question
In adjudicative ADR, appropriate evidence may need to be made available to the decision-taker
Answer
  • True
  • False

Question 76

Question
ADR may not be undertaken once an interim order has been sought
Answer
  • True
  • False

Question 77

Question
In adjudicative ADR an arbitrator may have interim powers, but interim orders could not be made by a mediator
Answer
  • True
  • False

Question 78

Question
The court will not necessarily see the strength of a case as justifying a refusal to use ADR
Answer
  • True
  • False

Question 79

Question
Antagonism between parties definitely rules out ADR if other factors indicate it might be appropriate
Answer
  • True
  • False

Question 80

Question
The lawyer must ensure that the client is sufficiently are of ADR alternatives to litigation
Answer
  • True
  • False

Question 81

Question
The lawyer doesn't need to provide objective information on relevant ADR options
Answer
  • True
  • False

Question 82

Question
The lawyer needs to advise the client on pre-action obligations, as well as obligations under the overriding objective in relation to ADR
Answer
  • True
  • False

Question 83

Question
The client doesn't need to be made aware of funding, costs or penalties
Answer
  • True
  • False

Question 84

Question
The lawyer must advise the client on the strengths and weaknesses of a case
Answer
  • True
  • False

Question 85

Question
The lawyer must advise on and draft terms of settlement
Answer
  • True
  • False

Question 86

Question
Which of the following is NOT within the role of the lawyer in non-adjudicative ADR processes?
Answer
  • 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

Question 87

Question
In ADR generally, any agreement reached should be within the parameters set by who?
Answer
  • Neutral 3P
  • Lawyers
  • Client

Question 88

Question
A lawyer negotiating on a client's behalf should only reach a final agreement if so authorised by the client
Answer
  • True
  • False

Question 89

Question
In negotiating as an agent, will a lawyer normally have apparent authority to settle on behalf of the client?
Answer
  • Yes
  • No

Question 90

Question
Can a limit on authority to settle be exceeded?
Answer
  • Yes
  • No

Question 91

Question
What are the main elements of the role of a lawyer in advising on terms of settlement?
Answer
  • 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

Question 92

Question
An ADR process isn't based on a contractual agreement between the parties
Answer
  • True
  • False

Question 93

Question
ADR processes are less structured than litigation and are therefore not robust
Answer
  • True
  • False

Question 94

Question
Control of an ADR process lies primarily with the parties
Answer
  • True
  • False

Question 95

Question
ADR may not be used as a delaying tactic
Answer
  • True
  • False

Question 96

Question
If a court has positively supported the use of ADR, a refusal to use it will more readily be seen as being unreasonable
Answer
  • True
  • False

Question 97

Question
Which of the following will a lawyer NOT be liable for?
Answer
  • 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

Question 98

Question
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
Answer
  • True
  • False

Question 99

Question
Any 3P involved in an ADR process might separately be liable for breach of contract or negligence
Answer
  • True
  • False

Question 100

Question
In which of the following situations may a lawyer be liable for negligence in relation to ADR?
Answer
  • 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

Question 101

Question
ADR processes are normally what?
Answer
  • Public
  • Private

Question 102

Question
ADR processes are normally protected from publicity by confidentiality clauses
Answer
  • True
  • False

Question 103

Question
The 'without prejudice' principle means what?
Answer
  • 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

Question 104

Question
Additional X for communications between a lawyer and client is provided by the principle of legal professional privilege. What is X?
Answer
  • Complication
  • Secrecy
  • Protection

Question 105

Question
In ADR, there is a general right to privacy
Answer
  • True
  • False

Question 106

Question
Which of the following are difficulties arising from the confidentiality of ADR processes?
Answer
  • 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

Question 107

Question
Is there a general duty of disclosure in ADR?
Answer
  • Yes
  • No

Question 108

Question
Which of the following is NOT a means by which information is shared in ADR?
Answer
  • By agreement
  • On a voluntary basis
  • By court ruling
  • As a reaction to developments in the process

Question 109

Question
In mediation, the position will be governed by the mediation agreement, and any published rules of the mediation provider selected.
Answer
  • True
  • False

Question 110

Question
For arbitration and other adjudicative processes, the parties will normally agree on the extent of mutual disclosure
Answer
  • True
  • False

Question 111

Question
For other types of evaluation or determination, parties won't agree what material is given to the 3P
Answer
  • True
  • False

Question 112

Question
Legal professional privilege is the privilege of X and can be waived by X. What is 'X'?
Answer
  • The client
  • The lawyer
  • The 3P

Question 113

Question
Information can be made privileged simply by being raised with a lawyer if it's otherwise disclosable.
Answer
  • True
  • False

Question 114

Question
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?
Answer
  • No
  • Yes

Question 115

Question
Legal professional privilege will apply to a meeting between lawyers and clients on opposing sides of a case
Answer
  • True
  • False

Question 116

Question
The intention of the 'without prejudice' principle is to protect from disclosure any communication made between parties with a view to settling a case
Answer
  • True
  • False

Question 117

Question
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?
Answer
  • Yes
  • No

Question 118

Question
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'?
Answer
  • Evidence and reference
  • Contention and discussion
  • Cross-examination and negotiation

Question 119

Question
The privilege is essentially joint and shouldn't normally be waived by one party alone
Answer
  • True
  • False

Question 120

Question
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
Answer
  • True
  • False

Question 121

Question
It's possible to exclude protection for specific purposes
Answer
  • True
  • False

Question 122

Question
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
Answer
  • True
  • False

Question 123

Question
In family cases, the Cafcass officer and any mediator won't be protected from disclosure in any subsequent hearing before another judge
Answer
  • True
  • False

Question 124

Question
Without prejudice provides protection from disclosure where a communication is made with a view to settlement
Answer
  • True
  • False

Question 125

Question
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?
Answer
  • Yes
  • No

Question 126

Question
Confidentiality is the norm within ADR
Answer
  • True
  • False

Question 127

Question
Will an agreement to use arbitration or mediation normally include a confidentiality clause?
Answer
  • Yes
  • No

Question 128

Question
A confidentiality clause won't commonly bind the parties to a dispute, and any 3P facilitator or decision-taker
Answer
  • True
  • False

Question 129

Question
A confidentiality clause must be express
Answer
  • True
  • False

Question 130

Question
There is no principle that will necessarily protect privacy if someone else at the ADR process were to make something public
Answer
  • True
  • False

Question 131

Question
In negotiation, information disclosed during a negotiation between lawyers may be protected by professional conduct responsibilities
Answer
  • True
  • False

Question 132

Question
If other people take part in a negotiation, information will always be protected unless those involved are bound by contractual confidentiality
Answer
  • True
  • False

Question 133

Question
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.
Answer
  • True
  • False

Question 134

Question
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?
Answer
  • All parties
  • The party making the communication
  • The negotiator

Question 135

Question
Experts, ENE and ED: Information may not be provided to a 3P in various circumstances in relation to an ADR process
Answer
  • True
  • False

Question 136

Question
Experts, ENE and expert determination: The confidentiality of the information provided to a 3P in these ADR processes is best protected through what?
Answer
  • A verbal agreement
  • An agreement with all parties
  • A term in the agreement with that individual

Question 137

Question
Experts, ENE and expert determination: One party may provide information that the party wishes to be kept confidential in relation to another party
Answer
  • True
  • False

Question 138

Question
Arbitral proceedings are private and confidential
Answer
  • True
  • False

Question 139

Question
Adjudicative processes such as arbitration are normally based on what?
Answer
  • Verbal agreement
  • Written agreement

Question 140

Question
Deployment by a party of its own documents in an arbitration clothes those documents with any confidentiality that they didn't already possess
Answer
  • True
  • False

Question 141

Question
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
Answer
  • True
  • False

Question 142

Question
Which of the following are the principal cases where disclosure may be permitted?
Answer
  • 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

Question 143

Question
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
Answer
  • True
  • False

Question 144

Question
How is an ADR process normally paid for?
Answer
  • Equally the parties
  • By the party brining the claim
  • By the party defending the claim

Question 145

Question
Do the use of DBAs and fixed fees provide incentives for early settlement?
Answer
  • Yes
  • No

Question 146

Question
Which one of the below is NOT a reason why an ADR may be cost effective?
Answer
  • 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

Question 147

Question
What are the main elements of expense for an ADR process?
Answer
  • 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

Question 148

Question
Negotiation will be most cost-effective if carried out through the use of written offers/in a telephone conversation
Answer
  • True
  • False

Question 149

Question
Parties won't be liable for their own expenses for a negotiation
Answer
  • True
  • False

Question 150

Question
If the negotiation doesn't result in settlement, expenses related to negotiation may form part of the costs of the proceedings
Answer
  • True
  • False

Question 151

Question
In a challenging case, a more experienced and specialist mediator might be more likely to what?
Answer
  • Achieve success but increase costs
  • Achieve success and ultimately save costs

Question 152

Question
Within mediation, does what is included in the final fee need to be clarified before finalising an agreement to mediate?
Answer
  • Yes
  • No
  • ...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.

Question 153

Question
Liability for the fee of the mediator or the mediation service provider will not normally be covered by the written mediation agreement
Answer
  • True
  • False

Question 154

Question
The mediation fee will normally be shared equally
Answer
  • True
  • False

Question 155

Question
Arbitration is general less expensive than other forms of ADR
Answer
  • True
  • False

Question 156

Question
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
Answer
  • True
  • False

Question 157

Question
Which one of the following is NOT one of the main expenses involved in an arbitration?
Answer
  • 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

Question 158

Question
Any funding agreement should envisage the possibility of what?
Answer
  • Need for expert evidence
  • Settlement
  • Need for a hearing

Question 159

Question
Cost of an ENE, expert determination or adjudication will depend on whether the process agreed is paper-based or includes oral evidence and representations
Answer
  • True
  • False

Question 160

Question
ENE, expert determination and adjudication: A fee isn't likely to be charged for finding a suitable 3P
Answer
  • True
  • False

Question 161

Question
After the event (ATE) insurance is necessary if a case is settled before issue
Answer
  • True
  • False

Question 162

Question
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?
Answer
  • Damages recovered
  • Profit gained
  • Costs incurred

Question 163

Question
In conditional fee arrangements (CFA) will the client pay legal fees if the claim is lost?
Answer
  • No
  • Yes

Question 164

Question
CFAs: Settlement of the case will normally mean that the fee and success fee are payable to the lawyer, depending on the outcome reached
Answer
  • True
  • False

Question 165

Question
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
Answer
  • True
  • False

Question 166

Question
QOCS will protect the party against what?
Answer
  • Liability for their own costs
  • Liability of costs for the other side
  • Liability of expenses incurred for the ADR process used

Question 167

Question
Damages-Based Agreements (DBA) provide that a range of specified information must be given before a DBA is entered into
Answer
  • True
  • False

Question 168

Question
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?
Answer
  • The costs of the other side
  • Their own costs even if they win

Question 169

Question
Which of the following statements about LAA is NOT true?
Answer
  • 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

Question 170

Question
Costs management applies to many MT cases commenced after 1 April 2013
Answer
  • True
  • False

Question 171

Question
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
Answer
  • True
  • False

Question 172

Question
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?
Answer
  • Pursued, amount and proportionate
  • incurred, amount and proportionate
  • Incurred, size and proportionate
  • Incurred, amount and fair

Question 173

Question
An ADR process is likely to need to take into account what?
Answer
  • 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

Question 174

Question
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
Answer
  • True
  • False

Question 175

Question
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.
Answer
  • True
  • False

Question 176

Question
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
Answer
  • True
  • False

Question 177

Question
If no proceedings have been issued can the court normally be involved in making a consent order?
Answer
  • Yes
  • No

Question 178

Question
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
Answer
  • True
  • False

Question 179

Question
Where an adjudicative process has been used, can the resulting decision equally be enforceable on the basis of contractual principles?
Answer
  • Yes
  • No

Question 180

Question
In a settlement reached without issue of proceedings the court will normally have no power to make any order as to costs
Answer
  • True
  • False

Question 181

Question
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?
Answer
  • Yes
  • No

Question 182

Question
Which of the following can a court take into account if proceedings are later issued?
Answer
  • Offers to settle
  • Conduct of the parties at the pre-action stage
  • Conduct of the parties during proceedings

Question 183

Question
Which of the following is NOT a core requirement of the Practice Direction?
Answer
  • 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

Question 184

Question
What might reasonable consideration of the use of ADR before claim include?
Answer
  • 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

Question 185

Question
Responding to a proposal in relation to ADR made before claim might include what?
Answer
  • 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

Question 186

Question
A court may be slow to accept non-compliance that isn't clearly justified
Answer
  • True
  • False

Question 187

Question
Which of the following is NOT a potential justification for non-compliance?
Answer
  • 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

Question 188

Question
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?
Answer
  • Ordering that they pay their own costs
  • Making an adverse costs order
  • Ordering that they pay everyone's costs

Question 189

Question
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?
Answer
  • Fundamental constraint
  • Unacceptable constraint
  • Unacceptable hindrance

Question 190

Question
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?
Answer
  • Agree on which ADR process to use
  • Pay costs
  • Reach a settlement

Question 191

Question
In some cases there is a requirement of mandatory consideration of mediation
Answer
  • True
  • False

Question 192

Question
Furthering the overriding objective does not include encouraging parties to use an ADR procedure if the court considers that appropriate
Answer
  • True
  • False

Question 193

Question
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.
Answer
  • True
  • False

Question 194

Question
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.
Answer
  • True
  • False

Question 195

Question
A stay will be for a period of how long?
Answer
  • 14 days
  • 28 days
  • 1 month

Question 196

Question
If a stay is granted for ADR to be attempted, the parties must keep the court informed about the outcome of the ADR process.
Answer
  • True
  • False

Question 197

Question
If no settlement is reached during the ADR process, will the parties need to formally dispose of the court proceedings?
Answer
  • Yes
  • No

Question 198

Question
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)
Answer
  • True
  • False

Question 199

Question
The court may give effect to ADR by upholding and enforcing ADR clauses
Answer
  • True
  • False

Question 200

Question
What might an ADR clause include?
Answer
  • 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

Question 201

Question
The court will give effect to ADR clauses regardless of the type of ADR process that the parties have agreed to use
Answer
  • True
  • False

Question 202

Question
The procedure set out in the contract does not need to be clear and unambiguous in order to be enforceable
Answer
  • True
  • False

Question 203

Question
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?
Answer
  • 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

Question 204

Question
Each party will be liable to pay their own costs and expenses in relation to an ADR process
Answer
  • True
  • False

Question 205

Question
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.
Answer
  • True
  • False

Question 206

Question
Costs can be shifted in and in relation to the use of ADR through the use of what?
Answer
  • 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

Question 207

Question
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
Answer
  • True
  • False

Question 208

Question
In non-adjudicative ADR, whatever is agreed as regards expenses can't be varied by agreement
Answer
  • True
  • False

Question 209

Question
A set figure can be agreed in relation to costs, or a simple process for determining what should be paid
Answer
  • True
  • False

Question 210

Question
In arbitration, can the parties agree to give the arbitrator/adjudicator power to award costs?
Answer
  • Yes
  • No

Question 211

Question
Other than in arbitration, the 3P will only have such power in relation to costs as the parties agree
Answer
  • True
  • False

Question 212

Question
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?
Answer
  • Yes
  • No

Question 213

Question
When making a costs order, the judge will have regard to all the circumstances, including what?
Answer
  • 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

Question 214

Question
Where a case is settled prior to the issue of proceedings the powers of the court are unlimited
Answer
  • True
  • False

Question 215

Question
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
Answer
  • True
  • False

Question 216

Question
Where settlement has been reached after the issue of proceedings, the court should be informed
Answer
  • True
  • False

Question 217

Question
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?
Answer
  • 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

Question 218

Question
Are the costs of interim applications made in connection with the use of ADR subject to the normal court discretion?
Answer
  • Yes
  • No

Question 219

Question
A party's expenses in relation to ADR can't be recovered as damages in subsequent litigation against a 3P
Answer
  • True
  • False

Question 220

Question
Will the expenses of a separate ADR process remain a matter of any agreement made by the parties?
Answer
  • Yes
  • No

Question 221

Question
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
Answer
  • True
  • False

Question 222

Question
If the amount of costs payable isn't agreed or specified it will need to be assessed.
Answer
  • True
  • False

Question 223

Question
If the terms proposed are accepted the dispute is resolved, but a Part 36 offer may also what?
Answer
  • 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

Question 224

Question
Costs shifting is the norm in many forms of ADR
Answer
  • True
  • False

Question 225

Question
An offer that doesn't meet all Part 36 requirements will stand as an offer without Part 36 consequences
Answer
  • True
  • False

Question 226

Question
An offer to pay the full amount claimed is still a Part 36 offer
Answer
  • True
  • False

Question 227

Question
Once made, a Part 36 offer stays in effect and can be accepted after the relevant period
Answer
  • True
  • False

Question 228

Question
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
Answer
  • True
  • False

Question 229

Question
The court can penalize a party when they unreasonably refuse to...
Answer
  • 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

Question 230

Question
Which one of the following orders can a court can make when penalizing a party?
Answer
  • 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

Question 231

Question
Non-compliance can include an unreasonable refusal to consider ADR
Answer
  • True
  • False

Question 232

Question
Which one of the following is NOT a sanction that a court can impose for non-compliance with the protocols?
Answer
  • 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)

Question 233

Question
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?
Answer
  • 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

Question 234

Question
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
Answer
  • True
  • False

Question 235

Question
In what situations will ADR not be appropriate?
Answer
  • 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

Question 236

Question
A party's belief that the case was strong is likely to be a sufficient justification for refusing ADR
Answer
  • True
  • False

Question 237

Question
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
Answer
  • True
  • False

Question 238

Question
Every mediation has to end with a payment to the claimant
Answer
  • True
  • False

Question 239

Question
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?
Answer
  • Yes
  • No

Question 240

Question
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
Answer
  • True
  • False

Question 241

Question
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
Answer
  • True
  • False

Question 242

Question
Who is the burden on to show that an ADR process such as mediation would have had a reasonable prospect of success?
Answer
  • Successful party
  • Unsuccessful party

Question 243

Question
Where there's no objective reason to conclude that ADR has no reasonable prospect of success, this burden will not be discharged
Answer
  • True
  • False

Question 244

Question
Apart from the Halsey factors, what other factors will be taken into consideration in deciding whether a party was unreasonable in refusing ADR?
Answer
  • 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

Question 245

Question
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?
Answer
  • Yes
  • No

Question 246

Question
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
Answer
  • True
  • False

Question 247

Question
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
Answer
  • True
  • False

Question 248

Question
Where the unsuccessful party has unreasonably delayed in consenting to mediation, this won't lead to an adverse costs order
Answer
  • True
  • False

Question 249

Question
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
Answer
  • True
  • False

Question 250

Question
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
Answer
  • True
  • False

Question 251

Question
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?
Answer
  • Yes
  • No

Question 252

Question
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
Answer
  • True
  • False

Question 253

Question
The court can't make an indemnity costs order where there is unreasonable conduct to a high degree
Answer
  • True
  • False

Question 254

Question
Which one of the following is NOT a circumstance in which the requirements for making an indemnity costs order could be met?
Answer
  • 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

Question 255

Question
If there are legitimate difficulties in using ADR, these can only be overcome if they are addressed at the time
Answer
  • True
  • False

Question 256

Question
Are communications passing between the parties that are aimed at settlement privileged from disclosure?
Answer
  • Yes
  • No

Question 257

Question
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'
Answer
  • True
  • False

Question 258

Question
What are the key features of negotiation?
Answer
  • Flexible process
  • Rigid process
  • Written communication
  • Oral communication
  • Written/telephone negotiations
  • Meetings

Question 259

Question
The negotiation process is subject to contractual principles
Answer
  • True
  • False

Question 260

Question
It will be a matter of fact when terms are sufficiently clear and have been accepted so that a binding agreement has been reached
Answer
  • True
  • False

Question 261

Question
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.
Answer
  • True
  • False

Question 262

Question
Which of the below are key ethical principles in negotiation?
Answer
  • 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

Question 263

Question
In negotiation, will the principle of without prejudice apply to all communications made as part of an attempt to settle a case?
Answer
  • Yes
  • No

Question 264

Question
A meeting to discuss 'battle tactics' rather than negotiate is privileged
Answer
  • True
  • False

Question 265

Question
There are specific requirements for the exchange of evidence in relation to negotiation.
Answer
  • True
  • False

Question 266

Question
Any document used in a negotiation which isn't otherwise disclosable will be protected by the principle of without prejudice
Answer
  • True
  • False

Question 267

Question
In negotiation, a lower number of participants will make the process more cost effective and easier to control.
Answer
  • True
  • False

Question 268

Question
There are formal rules for procedure in a negotiation
Answer
  • True
  • False

Question 269

Question
In negotiation, offers and concessions should be clearly stated whether in writing or orally to avoid any confusion
Answer
  • True
  • False

Question 270

Question
In negotiation, once agreed, does the settlement bind the parties immediately?
Answer
  • Yes
  • No

Question 271

Question
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?
Answer
  • Yes
  • No

Question 272

Question
Mediation is effectively a facilitated and more structured form of negotiation
Answer
  • True
  • False

Question 273

Question
Which of the following DOES not describe mediation?
Answer
  • 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

Question 274

Question
In mediation, do the parties themselves remain in control of the issues they would like to discuss?
Answer
  • Yes
  • No

Question 275

Question
Which of the following is NOT a way in which mediation can assist the negotiation process between the parties?
Answer
  • 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

Question 276

Question
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
Answer
  • True
  • False

Question 277

Question
Is mediation suitable for all disputes which raise issues capable of being resolved by negotiation?
Answer
  • Yes
  • No

Question 278

Question
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)
Answer
  • True
  • False

Question 279

Question
Mediation can be useful for resolving multi-party disputes involving multiple issues
Answer
  • True
  • False

Question 280

Question
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
Answer
  • True
  • False

Question 281

Question
When can mediation take place?
Answer
  • At any stage up to trial
  • Even pending an appeal
  • Before trial begins

Question 282

Question
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
Answer
  • True
  • False

Question 283

Question
The later the mediation takes place in the litigation, the greater the decrease in the costs savings that can result from a mediated settlement.
Answer
  • True
  • False

Question 284

Question
Which of the following can the court NOT do to make a party consider mediation?
Answer
  • 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

Question 285

Question
Which one of the following does NOT describe the mediator's role?
Answer
  • Overseeing the process
  • Organising the mediation process
  • Acting as facilitator during the process
  • Acting as intermediary between the parties

Question 286

Question
In acting as a facilitator, the mediator will encourage the parties to think about their BATNA and WATNA
Answer
  • True
  • False

Question 287

Question
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
Answer
  • True
  • False

Question 288

Question
What are the key ethical principles that a mediator must abide by?
Answer
  • 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

Question 289

Question
Parties do not have the right to withdraw from the mediation at any time
Answer
  • True
  • False

Question 290

Question
The duty of confidentiality will apply even after the mediation process has been completed or terminated
Answer
  • True
  • False

Question 291

Question
In mediation, the express or implied term of confidentiality exists between who?
Answer
  • Parties themselves
  • Parties and the mediator

Question 292

Question
In mediation, in which of the following circumstances may the court override confidentiality?
Answer
  • 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

Question 293

Question
Which of the following is NOT another exception to confidentiality?
Answer
  • 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

Question 294

Question
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
Answer
  • True
  • False

Question 295

Question
The mediation agreement itself is protected by the without prejudice principle
Answer
  • True
  • False

Question 296

Question
The without prejudice rule exists for the benefit of the parties and it can be waived by them
Answer
  • True
  • False

Question 297

Question
There are two main forms of mediation: facilitative and evaluative. Which is the norm?
Answer
  • Evaluative
  • Facilitative

Question 298

Question
The mediator, as a neutral or impartial 3P, helps the parties to solve their own problems by facilitating negotiations between the parties.
Answer
  • True
  • False

Question 299

Question
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
Answer
  • True
  • False

Question 300

Question
Which one of the following will a facilitative mediator NOT do?
Answer
  • 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

Question 301

Question
A facilitative mediator is likely to exert less control over the process than an evaluative mediator
Answer
  • True
  • False

Question 302

Question
An evaluative mediator will go beyond the role of facilitator
Answer
  • True
  • False

Question 303

Question
An evaluative mediator may also be asked to recommend a form of settlement, or a range of options for that settlement
Answer
  • True
  • False

Question 304

Question
The mediator will not usually evaluate a claim or issue unless specifically invited to do so
Answer
  • True
  • False

Question 305

Question
In evaluative mediation, the mediator must take great care not to impose his or her evaluation or preferred outcome on the parties.
Answer
  • True
  • False

Question 306

Question
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.
Answer
  • True
  • False

Question 307

Question
Complex or multi-party disputes or international disputes won't require more than one mediator to be appointed
Answer
  • True
  • False

Question 308

Question
How long does a typical mediation last for?
Answer
  • Half a day
  • One day
  • Two days

Question 309

Question
If the parties require an expert to be present at the mediation should this be discussed with the mediator in advance?
Answer
  • Yes
  • No

Question 310

Question
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
Answer
  • True
  • False

Question 311

Question
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.
Answer
  • True
  • False

Question 312

Question
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.
Answer
  • True
  • False

Question 313

Question
Typically, how many stages will a typical mediation go through?
Answer
  • Two
  • Three
  • Four
  • Five

Question 314

Question
The opening stage consists of introductions and each party setting out their formal position in relation to their issues in the case
Answer
  • True
  • False

Question 315

Question
The exploration stage has to take place in an open joint meeting
Answer
  • True
  • False

Question 316

Question
The negotiating (bargaining) stage will usually take place in private meetings with the mediator acting as broker between the parties
Answer
  • True
  • False

Question 317

Question
The settlement (or closing) stage will usually take place in private meetings
Answer
  • True
  • False

Question 318

Question
At the conclusion of each party's opening statement, the mediator may ask questions to clarify anything which is unclear
Answer
  • True
  • False

Question 319

Question
The second party to deliver the opening statement has to respond to respond to the first party's statement
Answer
  • True
  • False

Question 320

Question
Separate private meetings tend to be the key stage in the mediation process
Answer
  • True
  • False

Question 321

Question
In some mediations, will it be beneficial for the parties to negotiate some or all of the issues directly with one another?
Answer
  • Yes
  • No

Question 322

Question
If a settlement is reached, the mediator will confirm the terms agreed with each of the parties
Answer
  • True
  • False

Question 323

Question
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.
Answer
  • True
  • False

Question 324

Question
If no settlement is reached, the mediator usually will record this
Answer
  • True
  • False

Question 325

Question
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
Answer
  • True
  • False

Question 326

Question
Arb-med does not reverse the med-arb process
Answer
  • True
  • False

Question 327

Question
The relative informality of some ADR processes compared to litigation can lead to less central issues being overlooked.
Answer
  • True
  • False

Question 328

Question
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
Answer
  • True
  • False

Question 329

Question
Which one of the following is NOT the responsibility of the lawyer to ensure in recording a settlement?
Answer
  • 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

Question 330

Question
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
Answer
  • True
  • False

Question 331

Question
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
Answer
  • True
  • False

Question 332

Question
Arbitration should not result in an award
Answer
  • True
  • False

Question 333

Question
Early neutral evaluation should result in a report from the neutral 3P
Answer
  • True
  • False

Question 334

Question
Successful mediations and negotiations normally result in an a written agreement
Answer
  • True
  • False

Question 335

Question
To avoid uncertainty, it 's not uncommon for mediation agreements to include terms that any compromise will only be binding if made in writing
Answer
  • True
  • False

Question 336

Question
A successful non-adjudicative ADR should result in a contract compromising the dispute.
Answer
  • True
  • False

Question 337

Question
Where the whole dispute is settled the compromise agreement won't normally be stated to be in 'full and final settlement' of the dispute.
Answer
  • True
  • False

Question 338

Question
A party who wishes to preserve their right to sue on other causes of action should expressly reserve that right in the compromise agreement
Answer
  • True
  • False

Question 339

Question
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.
Answer
  • True
  • False

Question 340

Question
When a final draft is agreed it will be signed by each party and copies are then made
Answer
  • True
  • False

Question 341

Question
There is a specific form of written or oral statement for setting out the terms of a settlement.
Answer
  • True
  • False

Question 342

Question
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.
Answer
  • True
  • False

Question 343

Question
Non-adjudicative ADR processes often lead to oral contracts
Answer
  • True
  • False

Question 344

Question
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.
Answer
  • True
  • False

Question 345

Question
Non-adjudicative processes commonly lead to a formal written contract
Answer
  • True
  • False

Question 346

Question
In which of the following situations may a contract be appropriate?
Answer
  • 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

Question 347

Question
Court powers to award interest and make orders as to costs only apply to court orders
Answer
  • True
  • False

Question 348

Question
Agreed terms don't need to be enforceable
Answer
  • True
  • False

Question 349

Question
Where proceedings have been issued, can terms of settlement of a dispute following an ADR process be incorporated into a court order or judgment?
Answer
  • Yes
  • No

Question 350

Question
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?
Answer
  • Yes
  • No

Question 351

Question
Which of the following is NOT a method of recording a settlement?
Answer
  • 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

Question 352

Question
The fact that a settlement is reached after proceedings have been issued means that the terms have to be recorded in a court order
Answer
  • True
  • False

Question 353

Question
Endorsement of settlement on backsheets: when is this method most appropriate?
Answer
  • Where the agreement is complex
  • Where the agreement is simple

Question 354

Question
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.
Answer
  • True
  • False

Question 355

Question
Which one of the following is NOT normally dealt with on the face of a Tomlin Order?
Answer
  • 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

Question 356

Question
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
Answer
  • True
  • False

Question 357

Question
Which one of the following is NOT an option for the future of the litigation?
Answer
  • Entry of judgment
  • Offering to settle
  • Discontinuing the claim
  • Dismissing the claim
  • Staying the proceedings

Question 358

Question
Enforcement is of the compromise, decision, or award, rather than the original dispute
Answer
  • True
  • False

Question 359

Question
Insolvency is often an alternative to enforcement by proceedings in the civil courts
Answer
  • True
  • False

Question 360

Question
Which one of the following is NOT one of the factors which drive the use of online options for dispute resolution?
Answer
  • 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

Question 361

Question
Which forms of ADR can be carried out online?
Answer
  • Negotiation
  • Expert evaluation
  • Mediation
  • Arbitration
  • Offer and acceptance

Question 362

Question
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.
Answer
  • True
  • False

Question 363

Question
It's usually undertaken on behalf of the parties separately
Answer
  • True
  • False

Question 364

Question
Why is ENE different from mediation?
Answer
  • 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

Question 365

Question
Can ENE take place within the court system?
Answer
  • Yes
  • No

Question 366

Question
ENE can be employed at any stage of the dispute
Answer
  • True
  • False

Question 367

Question
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)
Answer
  • True
  • False

Question 368

Question
The parties can't control the amount and form of the information that is placed before the evaluator
Answer
  • True
  • False

Question 369

Question
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.
Answer
  • True
  • False

Question 370

Question
In ENE, the evaluation is binding and the parties have to accept it
Answer
  • True
  • False

Question 371

Question
Conciliation is a facilitative dispute resolution process in which a neutral 3P seeks to assist the parties to reach a settlement
Answer
  • True
  • False

Question 372

Question
Which of the following describe conciliation?
Answer
  • Adjudicative
  • Non-adjudicative
  • Facilitative
  • Evaluative
  • Confidential
  • Without prejudice
  • Public

Question 373

Question
Which one of the following is NOT a typical outcome that may be available in an individual matter under different complaints and grievance processes?
Answer
  • An explanation
  • An apology
  • Compensation
  • Reduction of a bill or a refund
  • A small gift
  • Disciplinary action

Question 374

Question
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
Answer
  • True
  • False

Question 375

Question
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
Answer
  • True
  • False

Question 376

Question
In expert determination, parties may not contractually bind themselves
Answer
  • True
  • False

Question 377

Question
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.
Answer
  • True
  • False

Question 378

Question
Expert determination is subject to the supervision of the court
Answer
  • True
  • False

Question 379

Question
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
Answer
  • True
  • False

Question 380

Question
In ED, the expert is acting as the decision-maker, not as a witness
Answer
  • True
  • False

Question 381

Question
Expert determination is a useful and cost-effective way of determining disputes of a highly technical nature
Answer
  • True
  • False

Question 382

Question
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
Answer
  • True
  • False

Question 383

Question
Which one of the following matters will NOT be taken into consideration when drafting the contractual provisions relating to ED?
Answer
  • 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

Question 384

Question
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?
Answer
  • Yes
  • No

Question 385

Question
In ED, the parties aren't under an implied duty cooperate with each other and with the expert in relation to the determination
Answer
  • True
  • False

Question 386

Question
In ED the parties won't usually agree that the decision will be binding on them
Answer
  • True
  • False

Question 387

Question
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
Answer
  • True
  • False

Question 388

Question
In DE, reasons need only be given for the determination if the contract so provides
Answer
  • True
  • False

Question 389

Question
The parties may agree in their contract that the expert's decision will only be binding on them in the absence of manifest error
Answer
  • True
  • False

Question 390

Question
In DE, the decision can't be challenged if the expert has departed from his or her instructions in a material way
Answer
  • True
  • False

Question 391

Question
In DE, a failure by one side to honour the decision will not amount to a breach of contract
Answer
  • True
  • False

Question 392

Question
Arbitration involves an impartial arbitrator or tribunal considering both sides of a dispute and making decision on the issues raised by the parties
Answer
  • True
  • False

Question 393

Question
Which of the following principles under the Arbitration Act 1996 are arbitrations subject to?
Answer
  • 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

Question 394

Question
In order for there to be an effective reference to arbitration, what requirements must be met?
Answer
  • 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

Question 395

Question
Almost all types of dispute can be referred to arbitration
Answer
  • True
  • False

Question 396

Question
If the arbitration is of some complexity, would it be sensible to hold a pre-trial hearing/conference?
Answer
  • Yes
  • No

Question 397

Question
Which one of the following is NOT a type of award available to arbitrators?
Answer
  • Summary awards
  • Procedural orders
  • Interim awards and awards on different issues
  • Main awards
  • Costs awards

Question 398

Question
Cross-border enforcement of arbitral awards can usually be achieved through the New York Convention 1958
Answer
  • True
  • False
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