RODOC quiz BPTC

Questão 1

Questão

What is the definition of ADR?

Responda

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

Questão 2

Questão

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

Responda

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

Questão 3

Questão

ADR is compulsory

Responda

True
False

Questão 4

Questão

The court will consider communications made during an ADR process

Responda

True
False

Questão 5

Questão

ADR options can only be used with agreement of the parties

Responda

True
False

Questão 6

Questão

In adjudicative ADE an independent 3P reaches an impartial decision on a dispute

Responda

True
False

Questão 7

Questão

Adjudicative ADR provides less flexibility and less privacy than litigation

Responda

True
False

Questão 8

Questão

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

Responda

True
False

Questão 9

Questão

The parties can't agree what material should be available should be available to the 3P

Responda

True
False

Questão 10

Questão

An adjudicative process won't be subject to court oversight

Responda

True
False

Questão 11

Questão

Adjudicative processes won't be conducted in private

Responda

True
False

Questão 12

Questão

How many arbitrators may conduct an arbitration?

Responda

One
One or more

Questão 13

Questão

The process to be followed won't be agreed in advance by the parties

Responda

True
False

Questão 14

Questão

An arbitration may only involve a hearing (broadly similar to a trial)

Responda

True
False

Questão 15

Questão

Arbitration is commonly used in commercial cases

Responda

True
False

Questão 16

Questão

What are the main attractions of arbitration?

Responda

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

Questão 17

Questão

What are the potential drawbacks of arbitration?

Responda

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.)

Questão 18

Questão

What does an adjudication involve?

Responda

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

Questão 19

Questão

Arbitration is most likely to be appropriate in a specialist commercial field

Responda

True
False

Questão 20

Questão

An adjudication process should not be agreed between parties in a binding form

Responda

True
False

Questão 21

Questão

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

Responda

True
False

Questão 22

Questão

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

Responda

True
False

Questão 23

Questão

Offer and acceptance is the simplest form of non-adjudicative ADR

Responda

True
False

Questão 24

Questão

In offer and acceptance, an offer can't be accepted orally

Responda

True
False

Questão 25

Questão

Offer and acceptance is most suited to a case with complex issues

Responda

True
False

Questão 26

Questão

An offer made in an attempt to settle will be protected by without prejudice privilege

Responda

True
False

Questão 27

Questão

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

Responda

True
False

Questão 28

Questão

Negotiation is the least common form of ADR

Responda

True
False

Questão 29

Questão

A mini trial may be arranged to determine what?

Responda

Specific issues
Costs

Questão 30

Questão

In a mini trial, each side makes summary submissions, and the senior officers seek to reach an agreement

Responda

True
False

Questão 31

Questão

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

Responda

True
False

Questão 32

Questão

Conciliation normally involves a neutral 3P

Responda

True
False

Questão 33

Questão

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

Responda

True
False

Questão 34

Questão

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

Responda

True
False

Questão 35

Questão

An ADR process isn't subject to contractual agreement between the parties

Responda

True
False

Questão 36

Questão

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

Responda

True
False

Questão 37

Questão

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

Responda

True
False

Questão 38

Questão

Non-adjudicative ADR can potentially take place very quickly, and soon after dispute arises

Responda

True
False

Questão 39

Questão

In non-adjudicative ADR, the parties can't agree the process to suit their needs

Responda

True
False

Questão 40

Questão

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

Responda

True
False

Questão 41

Questão

In adjudicative ADR a more flexible process can be agreed, and in non-adjudicative ADR the process is normally very flexible

Responda

True
False

Questão 42

Questão

Confidentiality is protected more through litigation than through ADR

Responda

True
False

Questão 43

Questão

In non-adjudicative ADR, parties can't agree any terms they wish

Responda

True
False

Questão 44

Questão

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

Responda

True
False

Questão 45

Questão

ADR can be less constructive than litigation

Responda

True
False

Questão 46

Questão

Risk may be more directly controlled through constructive and proactive use of ADR

Responda

True
False

Questão 47

Questão

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

Responda

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

Questão 48

Questão

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

Responda

True
False

Questão 49

Questão

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

Responda

True
False

Questão 50

Questão

What factors may mean that ADR is not appropriate?

Responda

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

Questão 51

Questão

At what time can ADR be used?

Responda

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

Questão 52

Questão

What does dealing with a case 'justly' include?

Responda

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

Questão 53

Questão

Waiting until after exchange of particulars of claim and documents before attempting ADR can mean that attitudes of parties have hardened and what?

Responda

Costs have grown (level of which may threaten successful ADR)
Parties may abandon claim altogether

Questão 54

Questão

Decisions about ADR may need review as relevant factors will change over time

Responda

True
False

Questão 55

Questão

Records of attempts to use ADR shouldn't be kept

Responda

True
False

Questão 56

Questão

Communications made with a view to settlement are privileged

Responda

True
False

Questão 57

Questão

If a clause is sufficiently clear and is contractually binding, is a court likely to enforce the clause if necessary?

Responda

Questão 58

Questão

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

Responda

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

Questão 59

Questão

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

Responda

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

Questão 60

Questão

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?

Responda

True
False

Questão 61

Questão

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?

Responda

Questão 62

Questão

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

Responda

True
False

Questão 63

Questão

Can the court order that a party/their representative attend court?

Responda

Questão 64

Questão

On an application for an interim order the court may give directions to support the use of ADR

Responda

True
False

Questão 65

Questão

Can the court order trial of a preliminary issue if the rest of a case might then settle?

Responda

Questão 66

Questão

When is it reasonable to refuse to agree to use ADR?

Responda

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

Questão 67

Questão

Settlement at the door of the court isn't common

Responda

True
False

Questão 68

Questão

It's reasonable to refuse to mediate because costs already exceed the amount in issue

Responda

True
False

Questão 69

Questão

There is no presumption that litigation should continue unless ADR is shown to be preferable

Responda

True
False

Questão 70

Questão

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

Responda

True
False

Questão 71

Questão

Once statements of case are in place, will the issues be sufficiently clear for ADR to be used?

Responda

Questão 72

Questão

What information needs to be made available for the case to be sufficiently evaluated before a dispute can be properly resolved?

Responda

Strength of case
Remedies
Parties' intentions

Questão 73

Questão

Is it essential to prove a case in non-adjudicative ADR?

Responda

Questão 74

Questão

It is essential for a lawyer to wait until full disclosure is complete to evaluate a case

Responda

True
False

Questão 75

Questão

In adjudicative ADR, appropriate evidence may need to be made available to the decision-taker

Responda

True
False

Questão 76

Questão

ADR may not be undertaken once an interim order has been sought

Responda

True
False

Questão 77

Questão

In adjudicative ADR an arbitrator may have interim powers, but interim orders could not be made by a mediator

Responda

True
False

Questão 78

Questão

The court will not necessarily see the strength of a case as justifying a refusal to use ADR

Responda

True
False

Questão 79

Questão

Antagonism between parties definitely rules out ADR if other factors indicate it might be appropriate

Responda

True
False

Questão 80

Questão

The lawyer must ensure that the client is sufficiently are of ADR alternatives to litigation

Responda

True
False

Questão 81

Questão

The lawyer doesn't need to provide objective information on relevant ADR options

Responda

True
False

Questão 82

Questão

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

Responda

True
False

Questão 83

Questão

The client doesn't need to be made aware of funding, costs or penalties

Responda

True
False

Questão 84

Questão

The lawyer must advise the client on the strengths and weaknesses of a case

Responda

True
False

Questão 85

Questão

The lawyer must advise on and draft terms of settlement

Responda

True
False

Questão 86

Questão

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

Responda

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

Questão 87

Questão

In ADR generally, any agreement reached should be within the parameters set by who?

Responda

Neutral 3P
Lawyers
Client

Questão 88

Questão

A lawyer negotiating on a client's behalf should only reach a final agreement if so authorised by the client

Responda

True
False

Questão 89

Questão

In negotiating as an agent, will a lawyer normally have apparent authority to settle on behalf of the client?

Responda

Questão 90

Questão

Can a limit on authority to settle be exceeded?

Responda

Questão 91

Questão

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

Responda

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

Questão 92

Questão

An ADR process isn't based on a contractual agreement between the parties

Responda

True
False

Questão 93

Questão

ADR processes are less structured than litigation and are therefore not robust

Responda

True
False

Questão 94

Questão

Control of an ADR process lies primarily with the parties

Responda

True
False

Questão 95

Questão

ADR may not be used as a delaying tactic

Responda

True
False

Questão 96

Questão

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

Responda

True
False

Questão 97

Questão

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

Responda

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

Questão 98

Questão

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

Responda

True
False

Questão 99

Questão

Any 3P involved in an ADR process might separately be liable for breach of contract or negligence

Responda

True
False

Questão 100

Questão

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

Responda

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

Questão 101

Questão

ADR processes are normally what?

Responda

Public
Private

Questão 102

Questão

ADR processes are normally protected from publicity by confidentiality clauses

Responda

True
False

Questão 103

Questão

The 'without prejudice' principle means what?

Responda

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

Questão 104

Questão

Additional X for communications between a lawyer and client is provided by the principle of legal professional privilege. What is X?

Responda

Complication
Secrecy
Protection

Questão 105

Questão

In ADR, there is a general right to privacy

Responda

True
False

Questão 106

Questão

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

Responda

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

Questão 107

Questão

Is there a general duty of disclosure in ADR?

Responda

Questão 108

Questão

Which of the following is NOT a means by which information is shared in ADR?

Responda

By agreement
On a voluntary basis
By court ruling
As a reaction to developments in the process

Questão 109

Questão

In mediation, the position will be governed by the mediation agreement, and any published rules of the mediation provider selected.

Responda

True
False

Questão 110

Questão

For arbitration and other adjudicative processes, the parties will normally agree on the extent of mutual disclosure

Responda

True
False

Questão 111

Questão

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

Responda

True
False

Questão 112

Questão

Legal professional privilege is the privilege of X and can be waived by X. What is 'X'?

Responda

The client
The lawyer
The 3P

Questão 113

Questão

Information can be made privileged simply by being raised with a lawyer if it's otherwise disclosable.

Responda

True
False

Questão 114

Questão

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?

Responda

Questão 115

Questão

Legal professional privilege will apply to a meeting between lawyers and clients on opposing sides of a case

Responda

True
False

Questão 116

Questão

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

Responda

True
False

Questão 117

Questão

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?

Responda

Questão 118

Questão

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'?

Responda

Evidence and reference
Contention and discussion
Cross-examination and negotiation

Questão 119

Questão

The privilege is essentially joint and shouldn't normally be waived by one party alone

Responda

True
False

Questão 120

Questão

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

Responda

True
False

Questão 121

Questão

It's possible to exclude protection for specific purposes

Responda

True
False

Questão 122

Questão

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

Responda

True
False

Questão 123

Questão

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

Responda

True
False

Questão 124

Questão

Without prejudice provides protection from disclosure where a communication is made with a view to settlement

Responda

True
False

Questão 125

Questão

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?

Responda

Questão 126

Questão

Confidentiality is the norm within ADR

Responda

True
False

Questão 127

Questão

Will an agreement to use arbitration or mediation normally include a confidentiality clause?

Responda

Questão 128

Questão

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

Responda

True
False

Questão 129

Questão

A confidentiality clause must be express

Responda

True
False

Questão 130

Questão

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

Responda

True
False

Questão 131

Questão

In negotiation, information disclosed during a negotiation between lawyers may be protected by professional conduct responsibilities

Responda

True
False

Questão 132

Questão

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

Responda

True
False

Questão 133

Questão

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.

Responda

True
False

Questão 134

Questão

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?

Responda

All parties
The party making the communication
The negotiator

Questão 135

Questão

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

Responda

True
False

Questão 136

Questão

Experts, ENE and expert determination: The confidentiality of the information provided to a 3P in these ADR processes is best protected through what?

Responda

A verbal agreement
An agreement with all parties
A term in the agreement with that individual

Questão 137

Questão

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

Responda

True
False

Questão 138

Questão

Arbitral proceedings are private and confidential

Responda

True
False

Questão 139

Questão

Adjudicative processes such as arbitration are normally based on what?

Responda

Verbal agreement
Written agreement

Questão 140

Questão

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

Responda

True
False

Questão 141

Questão

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

Responda

True
False

Questão 142

Questão

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

Responda

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

Questão 143

Questão

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

Responda

True
False

Questão 144

Questão

How is an ADR process normally paid for?

Responda

Equally the parties
By the party brining the claim
By the party defending the claim

Questão 145

Questão

Do the use of DBAs and fixed fees provide incentives for early settlement?

Responda

Questão 146

Questão

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

Responda

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

Questão 147

Questão

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

Responda

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

Questão 148

Questão

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

Responda

True
False

Questão 149

Questão

Parties won't be liable for their own expenses for a negotiation

Responda

True
False

Questão 150

Questão

If the negotiation doesn't result in settlement, expenses related to negotiation may form part of the costs of the proceedings

Responda

True
False

Questão 151

Questão

In a challenging case, a more experienced and specialist mediator might be more likely to what?

Responda

Achieve success but increase costs
Achieve success and ultimately save costs

Questão 152

Questão

Within mediation, does what is included in the final fee need to be clarified before finalising an agreement to mediate?

Responda

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.

Questão 153

Questão

Liability for the fee of the mediator or the mediation service provider will not normally be covered by the written mediation agreement

Responda

True
False

Questão 154

Questão

The mediation fee will normally be shared equally

Responda

True
False

Questão 155

Questão

Arbitration is general less expensive than other forms of ADR

Responda

True
False

Questão 156

Questão

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

Responda

True
False

Questão 157

Questão

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

Responda

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

Questão 158

Questão

Any funding agreement should envisage the possibility of what?

Responda

Need for expert evidence
Settlement
Need for a hearing

Questão 159

Questão

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

Responda

True
False

Questão 160

Questão

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

Responda

True
False

Questão 161

Questão

After the event (ATE) insurance is necessary if a case is settled before issue

Responda

True
False

Questão 162

Questão

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?

Responda

Damages recovered
Profit gained
Costs incurred

Questão 163

Questão

In conditional fee arrangements (CFA) will the client pay legal fees if the claim is lost?

Responda

Questão 164

Questão

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

Responda

True
False

Questão 165

Questão

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

Responda

True
False

Questão 166

Questão

QOCS will protect the party against what?

Responda

Liability for their own costs
Liability of costs for the other side
Liability of expenses incurred for the ADR process used

Questão 167

Questão

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

Responda

True
False

Questão 168

Questão

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?

Responda

The costs of the other side
Their own costs even if they win

Questão 169

Questão

Which of the following statements about LAA is NOT true?

Responda

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

Questão 170

Questão

Costs management applies to many MT cases commenced after 1 April 2013

Responda

True
False

Questão 171

Questão

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

Responda

True
False

Questão 172

Questão

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?

Responda

Pursued, amount and proportionate
incurred, amount and proportionate
Incurred, size and proportionate
Incurred, amount and fair

Questão 173

Questão

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

Responda

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

Questão 174

Questão

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

Responda

True
False

Questão 175

Questão

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.

Responda

True
False

Questão 176

Questão

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

Responda

True
False

Questão 177

Questão

If no proceedings have been issued can the court normally be involved in making a consent order?

Responda

Questão 178

Questão

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

Responda

True
False

Questão 179

Questão

Where an adjudicative process has been used, can the resulting decision equally be enforceable on the basis of contractual principles?

Responda

Questão 180

Questão

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

Responda

True
False

Questão 181

Questão

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?

Responda

Questão 182

Questão

Which of the following can a court take into account if proceedings are later issued?

Responda

Offers to settle
Conduct of the parties at the pre-action stage
Conduct of the parties during proceedings

Questão 183

Questão

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

Responda

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

Questão 184

Questão

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

Responda

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

Questão 185

Questão

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

Responda

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

Questão 186

Questão

A court may be slow to accept non-compliance that isn't clearly justified

Responda

True
False

Questão 187

Questão

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

Responda

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

Questão 188

Questão

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?

Responda

Ordering that they pay their own costs
Making an adverse costs order
Ordering that they pay everyone's costs

Questão 189

Questão

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?

Responda

Fundamental constraint
Unacceptable constraint
Unacceptable hindrance

Questão 190

Questão

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?

Responda

Agree on which ADR process to use
Pay costs
Reach a settlement

Questão 191

Questão

In some cases there is a requirement of mandatory consideration of mediation

Responda

True
False

Questão 192

Questão

Furthering the overriding objective does not include encouraging parties to use an ADR procedure if the court considers that appropriate

Responda

True
False

Questão 193

Questão

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.

Responda

True
False

Questão 194

Questão

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.

Responda

True
False

Questão 195

Questão

A stay will be for a period of how long?

Responda

14 days
28 days
1 month

Questão 196

Questão

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

Responda

True
False

Questão 197

Questão

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

Responda

Questão 198

Questão

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)

Responda

True
False

Questão 199

Questão

The court may give effect to ADR by upholding and enforcing ADR clauses

Responda

True
False

Questão 200

Questão

What might an ADR clause include?

Responda

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

Questão 201

Questão

The court will give effect to ADR clauses regardless of the type of ADR process that the parties have agreed to use

Responda

True
False

Questão 202

Questão

The procedure set out in the contract does not need to be clear and unambiguous in order to be enforceable

Responda

True
False

Questão 203

Questão

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?

Responda

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

Questão 204

Questão

Each party will be liable to pay their own costs and expenses in relation to an ADR process

Responda

True
False

Questão 205

Questão

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.

Responda

True
False

Questão 206

Questão

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

Responda

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

Questão 207

Questão

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

Responda

True
False

Questão 208

Questão

In non-adjudicative ADR, whatever is agreed as regards expenses can't be varied by agreement

Responda

True
False

Questão 209

Questão

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

Responda

True
False

Questão 210

Questão

In arbitration, can the parties agree to give the arbitrator/adjudicator power to award costs?

Responda

Questão 211

Questão

Other than in arbitration, the 3P will only have such power in relation to costs as the parties agree

Responda

True
False

Questão 212

Questão

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?

Responda

Questão 213

Questão

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

Responda

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

Questão 214

Questão

Where a case is settled prior to the issue of proceedings the powers of the court are unlimited

Responda

True
False

Questão 215

Questão

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

Responda

True
False

Questão 216

Questão

Where settlement has been reached after the issue of proceedings, the court should be informed

Responda

True
False

Questão 217

Questão

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?

Responda

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

Questão 218

Questão

Are the costs of interim applications made in connection with the use of ADR subject to the normal court discretion?

Responda

Questão 219

Questão

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

Responda

True
False

Questão 220

Questão

Will the expenses of a separate ADR process remain a matter of any agreement made by the parties?

Responda

Questão 221

Questão

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

Responda

True
False

Questão 222

Questão

If the amount of costs payable isn't agreed or specified it will need to be assessed.

Responda

True
False

Questão 223

Questão

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

Responda

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

Questão 224

Questão

Costs shifting is the norm in many forms of ADR

Responda

True
False

Questão 225

Questão

An offer that doesn't meet all Part 36 requirements will stand as an offer without Part 36 consequences

Responda

True
False

Questão 226

Questão

An offer to pay the full amount claimed is still a Part 36 offer

Responda

True
False

Questão 227

Questão

Once made, a Part 36 offer stays in effect and can be accepted after the relevant period

Responda

True
False

Questão 228

Questão

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

Responda

True
False

Questão 229

Questão

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

Responda

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

Questão 230

Questão

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

Responda

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

Questão 231

Questão

Non-compliance can include an unreasonable refusal to consider ADR

Responda

True
False

Questão 232

Questão

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

Responda

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)

Questão 233

Questão

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?

Responda

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

Questão 234

Questão

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

Responda

True
False

Questão 235

Questão

In what situations will ADR not be appropriate?

Responda

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

Questão 236

Questão

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

Responda

True
False

Questão 237

Questão

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

Responda

True
False

Questão 238

Questão

Every mediation has to end with a payment to the claimant

Responda

True
False

Questão 239

Questão

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?

Responda

Questão 240

Questão

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

Responda

True
False

Questão 241

Questão

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

Responda

True
False

Questão 242

Questão

Who is the burden on to show that an ADR process such as mediation would have had a reasonable prospect of success?

Responda

Successful party
Unsuccessful party

Questão 243

Questão

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

Responda

True
False

Questão 244

Questão

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

Responda

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

Questão 245

Questão

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?

Responda

Questão 246

Questão

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

Responda

True
False

Questão 247

Questão

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

Responda

True
False

Questão 248

Questão

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

Responda

True
False

Questão 249

Questão

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

Responda

True
False

Questão 250

Questão

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

Responda

True
False

Questão 251

Questão

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?

Responda

Questão 252

Questão

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

Responda

True
False

Questão 253

Questão

The court can't make an indemnity costs order where there is unreasonable conduct to a high degree

Responda

True
False

Questão 254

Questão

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

Responda

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

Questão 255

Questão

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

Responda

True
False

Questão 256

Questão

Are communications passing between the parties that are aimed at settlement privileged from disclosure?

Responda

Questão 257

Questão

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'

Responda

True
False

Questão 258

Questão

What are the key features of negotiation?

Responda

Flexible process
Rigid process
Written communication
Oral communication
Written/telephone negotiations
Meetings

Questão 259

Questão

The negotiation process is subject to contractual principles

Responda

True
False

Questão 260

Questão

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

Responda

True
False

Questão 261

Questão

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.

Responda

True
False

Questão 262

Questão

Which of the below are key ethical principles in negotiation?

Responda

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

Questão 263

Questão

In negotiation, will the principle of without prejudice apply to all communications made as part of an attempt to settle a case?

Responda

Questão 264

Questão

A meeting to discuss 'battle tactics' rather than negotiate is privileged

Responda

True
False

Questão 265

Questão

There are specific requirements for the exchange of evidence in relation to negotiation.

Responda

True
False

Questão 266

Questão

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

Responda

True
False

Questão 267

Questão

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

Responda

True
False

Questão 268

Questão

There are formal rules for procedure in a negotiation

Responda

True
False

Questão 269

Questão

In negotiation, offers and concessions should be clearly stated whether in writing or orally to avoid any confusion

Responda

True
False

Questão 270

Questão

In negotiation, once agreed, does the settlement bind the parties immediately?

Responda

Questão 271

Questão

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?

Responda

Questão 272

Questão

Mediation is effectively a facilitated and more structured form of negotiation

Responda

True
False

Questão 273

Questão

Which of the following DOES not describe mediation?

Responda

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

Questão 274

Questão

In mediation, do the parties themselves remain in control of the issues they would like to discuss?

Responda

Questão 275

Questão

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

Responda

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

Questão 276

Questão

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

Responda

True
False

Questão 277

Questão

Is mediation suitable for all disputes which raise issues capable of being resolved by negotiation?

Responda

Questão 278

Questão

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)

Responda

True
False

Questão 279

Questão

Mediation can be useful for resolving multi-party disputes involving multiple issues

Responda

True
False

Questão 280

Questão

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

Responda

True
False

Questão 281

Questão

When can mediation take place?

Responda

At any stage up to trial
Even pending an appeal
Before trial begins

Questão 282

Questão

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

Responda

True
False

Questão 283

Questão

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

Responda

True
False

Questão 284

Questão

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

Responda

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

Questão 285

Questão

Which one of the following does NOT describe the mediator's role?

Responda

Overseeing the process
Organising the mediation process
Acting as facilitator during the process
Acting as intermediary between the parties

Questão 286

Questão

In acting as a facilitator, the mediator will encourage the parties to think about their BATNA and WATNA

Responda

True
False

Questão 287

Questão

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

Responda

True
False

Questão 288

Questão

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

Responda

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

Questão 289

Questão

Parties do not have the right to withdraw from the mediation at any time

Responda

True
False

Questão 290

Questão

The duty of confidentiality will apply even after the mediation process has been completed or terminated

Responda

True
False

Questão 291

Questão

In mediation, the express or implied term of confidentiality exists between who?

Responda

Parties themselves
Parties and the mediator

Questão 292

Questão

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

Responda

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

Questão 293

Questão

Which of the following is NOT another exception to confidentiality?

Responda

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

Questão 294

Questão

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

Responda

True
False

Questão 295

Questão

The mediation agreement itself is protected by the without prejudice principle

Responda

True
False

Questão 296

Questão

The without prejudice rule exists for the benefit of the parties and it can be waived by them

Responda

True
False

Questão 297

Questão

There are two main forms of mediation: facilitative and evaluative. Which is the norm?

Responda

Evaluative
Facilitative

Questão 298

Questão

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

Responda

True
False

Questão 299

Questão

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

Responda

True
False

Questão 300

Questão

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

Responda

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

Questão 301

Questão

A facilitative mediator is likely to exert less control over the process than an evaluative mediator

Responda

True
False

Questão 302

Questão

An evaluative mediator will go beyond the role of facilitator

Responda

True
False

Questão 303

Questão

An evaluative mediator may also be asked to recommend a form of settlement, or a range of options for that settlement

Responda

True
False

Questão 304

Questão

The mediator will not usually evaluate a claim or issue unless specifically invited to do so

Responda

True
False

Questão 305

Questão

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

Responda

True
False

Questão 306

Questão

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.

Responda

True
False

Questão 307

Questão

Complex or multi-party disputes or international disputes won't require more than one mediator to be appointed

Responda

True
False

Questão 308

Questão

How long does a typical mediation last for?

Responda

Half a day
One day
Two days

Questão 309

Questão

If the parties require an expert to be present at the mediation should this be discussed with the mediator in advance?

Responda

Questão 310

Questão

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

Responda

True
False

Questão 311

Questão

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.

Responda

True
False

Questão 312

Questão

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.

Responda

True
False

Questão 313

Questão

Typically, how many stages will a typical mediation go through?

Responda

Two
Three
Four
Five

Questão 314

Questão

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

Responda

True
False

Questão 315

Questão

The exploration stage has to take place in an open joint meeting

Responda

True
False

Questão 316

Questão

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

Responda

True
False

Questão 317

Questão

The settlement (or closing) stage will usually take place in private meetings

Responda

True
False

Questão 318

Questão

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

Responda

True
False

Questão 319

Questão

The second party to deliver the opening statement has to respond to respond to the first party's statement

Responda

True
False

Questão 320

Questão

Separate private meetings tend to be the key stage in the mediation process

Responda

True
False

Questão 321

Questão

In some mediations, will it be beneficial for the parties to negotiate some or all of the issues directly with one another?

Responda

Questão 322

Questão

If a settlement is reached, the mediator will confirm the terms agreed with each of the parties

Responda

True
False

Questão 323

Questão

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.

Responda

True
False

Questão 324

Questão

If no settlement is reached, the mediator usually will record this

Responda

True
False

Questão 325

Questão

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

Responda

True
False

Questão 326

Questão

Arb-med does not reverse the med-arb process

Responda

True
False

Questão 327

Questão

The relative informality of some ADR processes compared to litigation can lead to less central issues being overlooked.

Responda

True
False

Questão 328

Questão

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

Responda

True
False

Questão 329

Questão

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

Responda

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

Questão 330

Questão

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

Responda

True
False

Questão 331

Questão

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

Responda

True
False

Questão 332

Questão

Arbitration should not result in an award

Responda

True
False

Questão 333

Questão

Early neutral evaluation should result in a report from the neutral 3P

Responda

True
False

Questão 334

Questão

Successful mediations and negotiations normally result in an a written agreement

Responda

True
False

Questão 335

Questão

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

Responda

True
False

Questão 336

Questão

A successful non-adjudicative ADR should result in a contract compromising the dispute.

Responda

True
False

Questão 337

Questão

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

Responda

True
False

Questão 338

Questão

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

Responda

True
False

Questão 339

Questão

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.

Responda

True
False

Questão 340

Questão

When a final draft is agreed it will be signed by each party and copies are then made

Responda

True
False

Questão 341

Questão

There is a specific form of written or oral statement for setting out the terms of a settlement.

Responda

True
False

Questão 342

Questão

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.

Responda

True
False

Questão 343

Questão

Non-adjudicative ADR processes often lead to oral contracts

Responda

True
False

Questão 344

Questão

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.

Responda

True
False

Questão 345

Questão

Non-adjudicative processes commonly lead to a formal written contract

Responda

True
False

Questão 346

Questão

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

Responda

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

Questão 347

Questão

Court powers to award interest and make orders as to costs only apply to court orders

Responda

True
False

Questão 348

Questão

Agreed terms don't need to be enforceable

Responda

True
False

Questão 349

Questão

Where proceedings have been issued, can terms of settlement of a dispute following an ADR process be incorporated into a court order or judgment?

Responda

Questão 350

Questão

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?

Responda

Questão 351

Questão

Which of the following is NOT a method of recording a settlement?

Responda

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

Questão 352

Questão

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

Responda

True
False

Questão 353

Questão

Endorsement of settlement on backsheets: when is this method most appropriate?

Responda

Where the agreement is complex
Where the agreement is simple

Questão 354

Questão

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.

Responda

True
False

Questão 355

Questão

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

Responda

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

Questão 356

Questão

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

Responda

True
False

Questão 357

Questão

Which one of the following is NOT an option for the future of the litigation?

Responda

Entry of judgment
Offering to settle
Discontinuing the claim
Dismissing the claim
Staying the proceedings

Questão 358

Questão

Enforcement is of the compromise, decision, or award, rather than the original dispute

Responda

True
False

Questão 359

Questão

Insolvency is often an alternative to enforcement by proceedings in the civil courts

Responda

True
False

Questão 360

Questão

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

Responda

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

Questão 361

Questão

Which forms of ADR can be carried out online?

Responda

Negotiation
Expert evaluation
Mediation
Arbitration
Offer and acceptance

Questão 362

Questão

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.

Responda

True
False

Questão 363

Questão

It's usually undertaken on behalf of the parties separately

Responda

True
False

Questão 364

Questão

Why is ENE different from mediation?

Responda

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

Questão 365

Questão

Can ENE take place within the court system?

Responda

Questão 366

Questão

ENE can be employed at any stage of the dispute

Responda

True
False

Questão 367

Questão

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)

Responda

True
False

Questão 368

Questão

The parties can't control the amount and form of the information that is placed before the evaluator

Responda

True
False

Questão 369

Questão

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.

Responda

True
False

Questão 370

Questão

In ENE, the evaluation is binding and the parties have to accept it

Responda

True
False

Questão 371

Questão

Conciliation is a facilitative dispute resolution process in which a neutral 3P seeks to assist the parties to reach a settlement

Responda

True
False

Questão 372

Questão

Which of the following describe conciliation?

Responda

Adjudicative
Non-adjudicative
Facilitative
Evaluative
Confidential
Without prejudice
Public

Questão 373

Questão

Which one of the following is NOT a typical outcome that may be available in an individual matter under different complaints and grievance processes?

Responda

An explanation
An apology
Compensation
Reduction of a bill or a refund
A small gift
Disciplinary action

Questão 374

Questão

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

Responda

True
False

Questão 375

Questão

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

Responda

True
False

Questão 376

Questão

In expert determination, parties may not contractually bind themselves

Responda

True
False

Questão 377

Questão

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.

Responda

True
False

Questão 378

Questão

Expert determination is subject to the supervision of the court

Responda

True
False

Questão 379

Questão

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

Responda

True
False

Questão 380

Questão

In ED, the expert is acting as the decision-maker, not as a witness

Responda

True
False

Questão 381

Questão

Expert determination is a useful and cost-effective way of determining disputes of a highly technical nature

Responda

True
False

Questão 382

Questão

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

Responda

True
False

Questão 383

Questão

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

Responda

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

Questão 384

Questão

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?

Responda

Questão 385

Questão

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

Responda

True
False

Questão 386

Questão

In ED the parties won't usually agree that the decision will be binding on them

Responda

True
False

Questão 387

Questão

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

Responda

True
False

Questão 388

Questão

In DE, reasons need only be given for the determination if the contract so provides

Responda

True
False

Questão 389

Questão

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

Responda

True
False

Questão 390

Questão

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

Responda

True
False

Questão 391

Questão

In DE, a failure by one side to honour the decision will not amount to a breach of contract

Responda

True
False

Questão 392

Questão

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

Responda

True
False

Questão 393

Questão

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

Responda

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

Questão 394

Questão

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

Responda

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

Questão 395

Questão

Almost all types of dispute can be referred to arbitration

Responda

True
False

Questão 396

Questão

If the arbitration is of some complexity, would it be sensible to hold a pre-trial hearing/conference?

Responda

Questão 397

Questão

Which one of the following is NOT a type of award available to arbitrators?

Responda

Summary awards
Procedural orders
Interim awards and awards on different issues
Main awards
Costs awards

Questão 398

Questão

Cross-border enforcement of arbitral awards can usually be achieved through the New York Convention 1958

Responda

True
False

	Criado por Jennifer Moles mais de 9 anos atrás

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RODOC quiz BPTC

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