Civil lit-ADR - Revision Notes PDF

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ALTERNATIVE DISPUTE RESOLUTION ADR means of resolving disputes by using an independent third party who may help the parties to reach their own solution but who cannot impose a solution. Other forms of ADR: Arbitration –  Specialist arbiter to hear the case, private can prohibit litigation, finality of award provides commercial certainty.  Voluntary in the sense that parties voluntarily enter into an arbitration agreement. Negotiation –  Both voluntary & non-binding, not the same as ADR as no independent third party  Independent third party that cannot pose solution is an essential feature of ADR  Independent third party not only will be trained to act as a neutral, but also should have any necessary industry knowledge required to understand the dispute. Advantages for ADR  CPR 1998 recognises advantages of ADR. Rule 1.4(2)(e) - court may further the overriding objective of dealing with cases justly by encouraging the parties to use an ADR procedure if the court considers that appropriate and facilitating the use of such procedure.  Confidential unlike court which the media can attend.  Can be significantly cheaper than both arbitration and litigation - because it is quicker.  Have to pay the third party for services and pay lawyers to help them on the day.  Save costs because reduction in time lawyers spend preparing and presenting the case and indirect costs involved in its employees and executives having to spend time reading court documents, consulting lawyers and attending court.  Flexible - parties can choose one of several forms of ADR, procedure to be followed and their neutral person - do not have to comply with any statutes, rules of court or any case law limiting what the parties or the neutral can do.  Preservation of business relationship - a non-confrontational method of solving their problem makes it much easier for them to continue their relationship - solution is theirs and has not been imposed upon them.  Disadvantages for ADR  If one party suggests ADR, the other parties do not have to agree - if the parties have started to resolve a dispute by ADR, most ADR agreements allow any party to withdraw at any stage before a solution has been agreed.  The awards are not so easily enforceable - if the parties do agree to terms suggested as a result of ADR, they have entered into a contract - can be sued for breach of contract.  Standard practice in ADR to provide that no agreement will be binding unless in writing and signed by the parties.  The facts may not be fully disclosed.  ADR is not appropriate for all cases:  (a) where the client needs an injunction;  (b) Where there is no dispute. If the case is a simple debt collection matter, the creditor should issue a claim form followed by a summary judgment application, or consider insolvency proceedings;  (c) Where the client needs a ruling on a point of law.

Types of ADR

Mediation  Third party who has been selected as mediator will have received written statements from both parties.  Following that, the mediator will discuss the case with the parties. They will tell him what they think about each party’s case on a without prejudice basis.  The mediator will not pass on to the other party information which is confidential.  These discussions help the mediator to identify the real areas of disagreement and the points which are most important to the respective parties.  Other forms of mediation - parties do not have to meet, can be dealt with by correspondence and telephone conversations. Med-arb  Parties agree to submit their dispute to mediation and that, if this does not work, they will refer the matter to arbitration.  Can use mediator as arbitrator - save costs. Mini-trial/structured settlement procedure  Parties appoint a neutral who will sit as chairman of a tribunal composed of himself and a senior representative of each of the parties.  They will then hear and/or read the cases of the two parties (sometimes with an expert), after which they will negotiate with each other with the help of the independent arbiter. Expert appraisal  Parties refer all or part of their dispute to an expert in the disputed field for his opinion.  Opinion not binding but could influence their approach to subsequent negotiations. Judicial appraisal  The Centre for Dispute Resolution (CEDR) has a scheme whereby former judges and senior counsel are available to give a quick preliminary view on the legal position, having heard representations from both parties.  Matter for agreement between parties whether opinion is to be binding on them or not. Expert determination  Halfway house between arbitration and ADR.  Parties select an expert to decide the case for them - they agree to accept his decision, and if one fails to do so, the other can sue for breach of contract.  The expert’s decision cannot be enforced as a court order and he does not have the powers of an arbitrator under the Arbitration Act 1996.  Unlike an arbitrator, can be sued in negligence by party who thinks decision was wrong. Final offer arbitration  Parties instruct neutral that they will both make an offer of the terms on which they will settle, and he must choose one of those two offers and no other solution. Early neutral evaluation  Parties instruct neutral to make preliminary assessment of facts at early stage in dispute.  Parties submit written case summaries and supporting documents.  The evaluator then makes a recommendation.  This helps the parties to negotiate a settlement (or move to another ADR method)...