Flashcards in Unit 4: Adjudicative and non-adjudicative ADR Deck (75)
List 7 non-adjudicative forms of ADR
Offer and Acceptance
Early Neutral Evaluation
List 2 adjudicative forms of ADR
What are the advantages of arbitration?
(4 examples given)
It is a private process.
It can be tailored to the needs of the specific dispute
Parties can select what material is submitted
It can be simple and cost effective if decided on the basis of written submissions
What are the drawbacks of arbitration?
It is not necessarily cost-saving
It does not work with non-cooperative parties
It all depends on the experience of the arbitrator
What are the advantages of expert determination?
What are the disadvantages of expert determination?
Can lead to high costs
Binding, even if a flawed decision
What are the advantages of negotiation as a non-adjudicative form of ADR?
Clients retain control over the outcome
What are the drawbacks of negotiation as an non-adjudicative form of ADR?
Success depends on well-prepared research
Success depends on the skill of the negotiator
Informality can lead to confusion of process
A negotiation does not work if parties have entrenched/unrealistic views
What are the benefits of mediation?
Neutral third parties can see the pros and cons of parties' positions more clearly.
Not part of the adversarial framework
Good success rates
can be cheaper than litigation
What are the drawbacks of mediation?
It all depends on the skill of the mediator
If it fails, it can add to overall costs
Parties sometimes try to abuse the process
Does not work for antagonistic parties
Can go on for a while
Is mediation ever binding?
Only where it results in a drawn up agreement between the parties.
Can costs be ordered if a party unreasonably refuses to participate in mediation?
What two functions can mediation fulfil?
Should a mediator withdraw if they have a financial stake in the outcome of the mediation?
Can parties withdraw from mediation at any time?
Yes; it is voluntary.
When can a court override confidentiality provisions of mediation?
Where it is in the interests of justice to do so
Where there is an action against the mediator for:
- breach of contract
Requirement of law (Proceeds of Crime Act 2002)
Necessary to prevent risk of harm to the public
Prevent criminal activity
What is the effect of the 'without prejudice' rule?
Any such communications cannot be relied on in subsequent court proceedings.
Which communications are not protected by the without prejudice rule in mediation? (3)
Documents not created for the purpose of exploring settlement;
The mediation agreement itself
Anything to which all parties in the proceedings waive privilege
What are the four stages of mediation?
- Joint or closed
- Joint or closed
Name three court mediation schemes
Mayor's and London County Court Mediation Scheme
HMCTS Small Claims Mediation Scheme
Court of Appeal Mediation Scheme
In which areas of law are judicial mediation schemes provided for?
Technology and Construction
Why is mediation by judges considered controversial?
Judges are meant to be evaluative, not facilitative.
Does an evaluator in ENE get involved in negotiations between parties?
No; they remain advisory and evaluative.
Can decisions of expert determinators be challenged?
Typically, if parties agree to resolve disputes in that way, provided that the expert has done so properly, their decision generally cannot be set aside.
Failure to honour the decision of an expert determinator leads to...
Breach of contract. This decision will then be enforced like any other judgment.
TRUE or FALSE. Arbitration agreements are seen as separable from the rest of the contract.
Arbitratins under the 1996 Act are governed by which three general principles?
The objective is to obtain FAIR RESOLUTION of disputes by an impartial tribunal without unnecessary delay or expense.
Parties are free to agree how their disputes are resolved, subject to PUBLIC INTEREST safeguards;
The court SHOULD NOT INTERVENE except as provided by AA 1996.
can arbitrators make a decision against a person not party to the agreement?
Can arbitrators make a decision on matters not covered by the agreement?