ADR exam 2020(Oct) AB - Past paper for adr PDF

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LA3011 October ZA Alternative Dispute Resolution Wednesday 14 October 2020

You will have TWO HOURS AND 45 MINUTES in which to answer the questions, including 15 minutes reading time. You must answer all parts of a question unless otherwise stated.

You will have an additional 30 minutes to download the examination paper and to upload your saved answers to the VLE; this time should be used solely for these purposes.

PART ONE of the examination consists of Multiple Choice Questions. Answer these questions by writing the letter you think is the correct answer. PART TWO of the examination consists of both problem and essay questions. You must answer ONE from the SEVEN questions in PART TWO.

© University of London 2020 Page 1 of 12

PART ONE Answer these questions by writing the letter you think is the correct answer. 1.

Which ONE of the following cases is NOT LIKELY to be suitable for mediation? [1 mark] a. An environmental case concerning air pollution by the owners of a factory. b. A claim for damages arising out of a contract for the supply of goods and services. c. A claim for negligence arising out of an accident at work. d. A claim against an employer claiming damages for unfair dismissal.

2.

Which ONE of the following statements is CORRECT in respect of mediation? [1 mark] a. The mediator will always impose a settlement on the parties. b. The terms of settlement reached in a mediation can only include terms that a court could order. c. The mediator can diffuse strong emotions which may impede effective communication between the parties. d. Any settlement reached in mediation is checked by the mediator to ensure it correctly reflects the respective legal merits of each party’s case.

3.

Which ONE of the following statements is CORRECT in respect of a facilitative mediator? [1 mark] a. The mediator will facilitate negotiation between the parties but will not state an opinion about the merits of each party’s respective case. b. The mediator will assess the legal merits of each party’s case and recommend a figure at which they should each settle. c. The mediator will issue a decision which is binding on the parties if they do not settle the dispute themselves. d. A facilitative mediator focusses on repairing the relationship between the parties rather than facilitating negotiations.

4.

Which ONE of the following statements DESCRIBES the BEST time to attempt mediation? [1 mark] a. Before court proceedings have been issued as it will most likely have the greatest saving in time and cost. b. After proceedings have been issued and documents and witness statements have been exchanged. c. After the case has been set down for trial in court. d. As soon as the parties have gathered enough information to understand their own case and the other side’s case and their response to it.

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5.

Which ONE of the following is LEAST LIKLEY to be required when preparing for mediation? [1 mark] a. Agree and sign the Agreement to Mediate and appoint the mediator. b. Prepare a Position Statement and provide it to the mediator and exchange it with the other party to the mediation. c. Give disclosure of all documents relevant to the dispute (including documents which are adverse to a party’s case or which support the case of the other side) to both the mediator and the other side. d. Prepare a statement of the costs to date and an estimate of the likely costs to take the matter to trial.

6.

Which ONE of the following statements is CORRECT in describing what usually happens during the Opening Phase of a mediation? [2 marks] a. The mediator will introduce the mediation, outline the process, formally question each party about aspects of their case, and then openly explore with each party the basis on which they would be willing to reach a settlement. b. The mediator will introduce the mediation and outline the process, the parties will each make an opening statement and then witnesses will be called by each party and questioned by the mediator. c. The mediator will outline the mediation process, each of the parties will be invited to make an opening statement, the mediator usually at that point will close the opening session and the parties go into closed private meetings (or caucuses). d. The clamant opens the case, the respondent replies and the mediator then closes the opening joint meeting.

7.

Which ONE of the following statements CORRECTLY describes the term that is usually contained in the Agreement to Mediate about the nature and form of a settlement agreement reached in mediation? [2 marks] a. A binding settlement will come into effect as soon as one party makes an oral offer of settlement which is orally accepted by the other party. b. A settlement reached during the mediation will only be legally binding on the parties when it is recorded in writing and signed by the parties. c. A settlement agreement reached between the parties in a mediation will only become legally binding and enforceable when it recorded in a court order. d. A settlement agreement reached during a mediation is only legally binding on the parties if the terms of the settlement are approved by the mediator.

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8.

Jennifer Black was appointed as mediator in a contractual dispute between Irina and Salman. At the pre-mediation meeting, Jennifer realised that Irina was the Managing Director of a company in which she had recently invested loan capital and the company is likely to be affected by the outcome of the dispute. Which ONE of the following CORRECTLY describes the ethical duty that Jennifer Black has in this situation and the action she should take? [2 marks] a. She must ensure that she is independent, neutral and impartial and so should disclose this information to the parties as it gives rise or may give rise to conflict of interest and could be said to affect her neutrality and impartiality. b. She must act and be seen to act at all times with impartiality and so should withdraw from the mediation as even if the matter was disclosed to Salman the circumstances are such that Jennifer should not continue as mediator even if Salman consented to her continuing to act. c. She must be independent and impartial but she should do nothing in these circumstances because the company in which she invested money is not a party to the dispute so her independence and impartiality as mediator are not compromised. d. Mediation is not a regulated profession and there are no ethical duties imposed on mediators by a regulated body and so Jennifer does not need to take any action in these circumstances.

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9.

A mediation took place between Charles and Yasser which failed to result in a settlement of the dispute. In the mediation, Charles agreed to pay damages to Yasser for failing to supply paint of the specified contractual quality. Court proceedings have now been commenced by Yasser against Charles claiming the price due under the contract for the supply of the paint. Yasser would like to adduce evidence in the court proceedings of the offer that Charles made in the mediation in relation to the paint. Which ONE of the following statements is the CORRECT advice to give to Yasser about whether he can adduce evidence in the court proceedings of the offer made by Charles in the mediation? [2 marks] a. Mediation is protected by the “Without Prejudice” rule and by an express or implied contractual obligation of confidentiality. As the offer was made in an attempt to settle the dispute, it is inadmissible in the court proceedings. b. Mediation is protected by the “Without Prejudice” rule, but as the offer effectively amounts to an admission of liability in relation to the supply of paint, which was not of the specified quality, it can be adduced in the court proceedings. c. The “Without Prejudice” rule only exists in relation to court proceedings and it has no application to mediation, so the court can hear evidence about what took place in the mediation, including the offer Charles made in relation to the paint. d. Mediation is protected by an express or implied obligation of confidentiality, but the court can override confidentiality where it is in the interests of justice to do so, and it is likely to do so in this case as Charles’s offer in the mediation relates to a key issue in the litigation.

10.

Which ONE of the following statements correctly describes whether a mediator can be sued by a party to the mediation? [2 marks] a. The mediator can never be sued as a mediator always has contractual immunity from suit. b. A mediator can be sued if he or she acted negligently or in breach of contract although it may be difficult to prove causation and loss in such cases, and there may be an effective contractual clause providing the mediator with immunity from suit. c. A mediator can only be sued if a settlement agreement was reached in a mediation and the other party has successfully applied to the court to have it set aside for misrepresentation by the mediator. d. The mediator can never be sued because he or she is acting in a judicial capacity.

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11.

Which one of the following statements BEST describes a MIAM? [2 marks] a. A meeting between the parties to discuss mediation and whether it is suitable for their case. b. A mandatory mediation in which the parties are compelled to take part, whether by court order or specific civil procedural rules, although they are not compelled to reach a settlement in the mediation. c. A meeting which the parties are required to attend with a mediator who explains to them the mediation process, assesses whether it is suitable for their case and if so, seeks to get them to agree to mediate. d. A compulsory mediation meeting held during the course of court proceedings in which the judge becomes the mediator, although the parties can continue with the court proceedings if settlement cannot be reached in the mediation.

12.

A mediation is in progress between Jason and Joshua. The parties have reached an impasse and it is clear that settlement is not likely to be reached. Before the parties terminate the mediation, Joshua is wondering whether it would be sensible to ask the mediator, a very experienced senior counsel, to evaluate the dispute and give her opinion on the likely outcome should the matter go to trial. The mediation is being conducted before court proceedings have been issued. Which ONE of the following statements would be WRONG advice to give Joshua about the implications of the parties appointing the mediator to give an opinion on the merits of the dispute in an attempt to move the mediation forwards? [2 marks] a. If the mediator gives an opinion on the merits, the opinion will be binding on the parties and they must settle on the terms of it. b. If a mediator gives an opinion which favours one side’s case over that of another, it can lead to a loss of confidence in the mediator as she may no longer be perceived to be neutral or impartial. c. There is a risk that the mediator may reach h er opinion on the basis of incomplete facts and evidence as court proceedings have not yet been issued. d. If the mediator gives her opinion on the merits, this is not binding on the parties but it may help them to move the negotiations forward and break deadlock.

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13.

Which ONE of the following communications is protected by the “Without Prejudice” rule in mediation? [2 marks] a. Open offers. b. Documents which are used in the mediation but were not created specifically for the purpose of reaching a settlement. c. All communications written or oral which take place within the mediation including communications made in an attempt to persuade a party to mediate. d. Offers that are made during the mediation in an attempt to reach a settlement.

14.

Riccardo and Victor have reached a settlement in a mediation. Assume the mediation took place in a European Union member state which had fully implemented the EU Directive on mediation in civil and commercial matters (Directive 2008/52/EC) and that the terms of the Directive apply to this mediation. An issue has arisen in relation to the implementation of a term in the settlement agreement and Riccardo has issued an application to the court to enforce the term. Victor disputes the meaning of the term and he seeks an order that the mediator should be compelled to give evidence about the events of the mediation insofar as they relate to the disputed term in the settlement agreement. Which ONE of the following statements would be the CORRECT advice to give to Victor on whether the court is likely to compel the mediator to give evidence about the events of the mediation in these circumstances? [2 marks] a. The court will only make an order if it is in the interests of justice to do so. b. The court will only make an order if it is necessary for overriding considerations of public policy. c. The court will make an order only if the parties agree or the evidence sought relates to the mediation settlement, and disclosure is necessary to implement or enforce the mediation settlement agreement. d. The court will make an order only if the parties agree.

15.

Which ONE of the following statements is WRONG about the role that a lawyer usually plays in the different phases of a mediation? [2 marks] a. The Opening Phase in which the lawyer will usually deliver the opening statement on behalf of a party. b. The Closing Phase in which the lawyer will advise the client on any settlement terms agreed, draw up the settlement agreement, explain the effects of it to the client and ensure the client consents to the terms. c. The Exploration Phase in which the lawyer will work with the mediator to ensure that he or she understands the client’s case and the weaknesses in the other side’s case. d. The Negotiation Phase, in which the lawyer will act as a “shuttle diplomat” taking offers and counter-offers from his client to the other party. Page 7 of 12

PART TWO You must answer ONE question in this section. 16.

Discuss the extent to which the use of robust case management orders and the imposition of sanctions for an unreasonable refusal to engage in ADR are effective in encouraging parties in a dispute to use ADR in England and Wales. [25 marks]

17.

Analyse the different strategies and tactics that can be employed in a negotiation and the extent to which these are effective in obtaining the best possible outcome for a client. [25 marks]

18.

Last year, Natalie, who is aged 19, set up and ran a dog grooming business from her home in Oak Close. Oak Close is a densely populated residential street which consists of detached houses on each side of the street. The houses are situated about four metres from each other, and each house has space for parking two cars. Initially business was slow, and Natalie groomed around two or three dogs per day and caused no annoyance to her neighbours. However, recently her business expanded and she has constructed a large shed in her garden which is fitted out with running water, electricity, dog baths and vacuum driers and she carries on her business from the shed. She has engaged another groomer to work with her and now two dogs are groomed every hour and around 14 dogs are groomed per day, including Saturdays. The dogs start arriving from 8.30am and usually business finishes around 6pm. One of Natalie’s adjoining neighbours, Bella, has complained about the constant noise and pollution from traffic as pet owners drop off and pick up their dogs, and that Natalie’s customers often park outside her property, obstructing access to her driveway. Bella believes this could be avoided by requiring customers to park in the village carpark which is about 5 minutes’ walk from Natalie’s premises. Bella has also complained about dog fouling in the street and about dogs urinating against the fence post at the edge of her driveway and on her driveway causing unsightly staining of the block-paving and also causing rot at the base of the post. She has obtained a quotation from a local company to repair the damaged post and clean the paving at a cost of £1,500. Bella is also concerned about the fact that many customers do not put their dogs on a lead when they take them from their vehicles into Natalie’s premises, and they often run onto her lawn and urinate there, resulting in her having large brown unsightly stains on her lawn. Bella has obtained a quotation from a local gardening company to dig up the existing lawn, prepare a fresh soil base and re-lay new turf to remedy the brown staining on the lawn. The brown staining is so extensive that a patchwork repair will not suffice. This will cost £700 including labour and materials. Page 8 of 12

Bella is also annoyed about the constant barking from dogs kept in a confined space on the side of Natalie’s property whilst they are waiting to be groomed or collected. Bella is threatening to bring legal proceedings for injunctive relief against Natalie unless these matters are resolved. Both sides are keen to reach an amicable settlement and have agreed to meet next week to try to negotiate a solution. You are acting for Bella. a. Describe Bella’s key objectives in the negotiation and the arguments you would make to secure these objectives in the negotiation. [10 marks] b. Assess which negotiation strategy and style is likely to work best in this situation and explain why. [5 marks] c. Bella has contacted the local council and has been advised that it is unlikely that Natalie needs planning permission to use her shed as a grooming parlour. She is wondering how to best make use of this information in the negotiation. In particular, she is wondering if she can tell Natalie that she has been advised that planning permission is needed for her to carry out a business from her property and for the construction of the shed and she will object to any application that is made unless matters are resolved to her satisfaction today. Evaluate whether Bella can use this tactic in the negotiation and what use (if any) can be made of the information about planning permission. [5 marks] d. During the negotiation, assume Natalie made an offer in the sum of £2,000 in full and final satisfaction of Bella’s claim which was said to be “Without prejudice except as to costs”. Describe the consequences which flow from the making of this offer. [5 marks]

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19.

Good Foods plc purchased a large quantity of apples from Soft Fruits Ltd. The contract provided for the apples to be “Best Granny Smiths, free from blemishes, ripe for eating now”. When the crates of apples were delivered to Good Foods plc, they challenged compliance with the terms of the contract, both as to description and quality and want to reject the goods and recover the price paid. Soft Fruits Ltd contend the apples meet the quality and description specified in the contract and they deny that Good Foods plc are entitled to reject the consignment. Both parties are keen to resolve the dispute as quickly as possible. You are acting for Good Foods plc. a. Discuss whether this dispute is suitable for expert determination. [5 marks] b. Explain what key terms you would seek to include in the contract appointing the expert. [5 marks] c. Explain the basis on which it may be possible to challenge the determination if it does not go in your favour. [10 marks] d. Good Foods plc would like to provide the appointed expert with some confidential information related to the issues in dispute. Discuss whether it would be appropriate for them to do this. [5 marks]

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20.

Ayesha runs an award-winning top-quality restaurant which employs leading chefs. She is in dispute with her regular supplier of meat, Premier Meats, about the quality of the meat supplied in the last two orders. The meat was of...