Unit 4: Adjudicative and non-adjudicative ADR Flashcards Preview

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Flashcards in Unit 4: Adjudicative and non-adjudicative ADR Deck (75)
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1

List 7 non-adjudicative forms of ADR

Offer and Acceptance
Negotiation
Mediation
Early Neutral Evaluation
Conciliation
Complaints/grievance procedures
Mini-trial

2

List 2 adjudicative forms of ADR

Arbitration
Expert determination

3

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

4

What are the drawbacks of arbitration?

(3)

It is not necessarily cost-saving

It does not work with non-cooperative parties

It all depends on the experience of the arbitrator

5

What are the advantages of expert determination?

Flexibility

6

What are the disadvantages of expert determination?

Can lead to high costs

Binding, even if a flawed decision

7

What are the advantages of negotiation as a non-adjudicative form of ADR?

Flexible

Cost effective

Clients retain control over the outcome

8

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

9

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

Flexible

Good success rates

can be cheaper than litigation

Private

Informal

10

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

11

Is mediation ever binding?

Only where it results in a drawn up agreement between the parties.

12

Can costs be ordered if a party unreasonably refuses to participate in mediation?

Yes.

13

What two functions can mediation fulfil?

Evaluative

Facilitative

14

Should a mediator withdraw if they have a financial stake in the outcome of the mediation?

Yes.

15

Can parties withdraw from mediation at any time?

Yes; it is voluntary.

16

When can a court override confidentiality provisions of mediation?

(5)

Where it is in the interests of justice to do so

Where there is an action against the mediator for:
- breach of contract
- negligence

Requirement of law (Proceeds of Crime Act 2002)

Necessary to prevent risk of harm to the public

Prevent criminal activity

17

What is the effect of the 'without prejudice' rule?

Any such communications cannot be relied on in subsequent court proceedings.

18

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

19

What are the four stages of mediation?

Opening stage

Exploration stage
- Joint or closed

Negotiation
- Joint or closed

Settlement stage

20

Name three court mediation schemes

Mayor's and London County Court Mediation Scheme

HMCTS Small Claims Mediation Scheme

Court of Appeal Mediation Scheme

21

In which areas of law are judicial mediation schemes provided for?

(FECT)

Family law

Technology and Construction

Employment

22

Why is mediation by judges considered controversial?

Judges are meant to be evaluative, not facilitative.

23

Does an evaluator in ENE get involved in negotiations between parties?

No; they remain advisory and evaluative.

24

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.

25

Failure to honour the decision of an expert determinator leads to...

Breach of contract. This decision will then be enforced like any other judgment.

26

TRUE or FALSE. Arbitration agreements are seen as separable from the rest of the contract.

True.

27

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.

28

can arbitrators make a decision against a person not party to the agreement?

No.

29

Can arbitrators make a decision on matters not covered by the agreement?

No.

30

What are the two grounds of appeal for arbitration decisions?

Section 68 AA: serious irregularity

Section 69: appeal on a point of law