Chapter 4

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Questions and Answers

What is a key characteristic of alternative dispute resolution (ADR)?

It is exclusively handled by legal courts.

It is mandatory for all parties involved.

It is always determinative in nature.

It allows parties to choose the process and withdraw anytime. (correct)

Which of the following distinguishes litigation from alternative dispute resolution?

Litigation is less formal than ADR.

Litigation is a collaborative process.

Litigation is considered mandatory once initiated. (correct)

Litigation requires the consent of both parties to withdraw.

What does 'determinative ADR' refer to?

A non-binding method of resolving disputes.

ADR where the third party may impose a solution. (correct)

A process that is mandatory for all disputes.

ADR where the third party cannot impose a solution.

What is a common advantage of using ADR over litigation?

It is generally less costly and quicker. Signup and view all the answers

Which option does NOT describe a characteristic of arbitration?

Arbitration requires judicial intervention. Signup and view all the answers

Which of the following is NOT true about the confidentiality of ADR?

Outcomes of ADR are publicly disclosed by default. Signup and view all the answers

What can lead to parties opting for ADR instead of litigation?

Preference for a quicker and more cost-effective resolution. Signup and view all the answers

Which of the following does NOT represent a type of ADR?

Litigation Signup and view all the answers

What is one of the main advantages of using alternative dispute resolution (ADR) as recognized by the CPR 1998?

It may help save litigants from the delay of litigation Signup and view all the answers

How does ADR contribute to preserving relationships between parties?

Through confidential discussions that avoid court exposure Signup and view all the answers

Which of the following is NOT mentioned as a benefit of ADR?

Guaranteed legal precedence Signup and view all the answers

According to the Practice Statement, what aspect does ADR significantly contribute to?

Facilitating faster judicial processes Signup and view all the answers

What does the confidentiality of ADR ensure?

Statements made cannot be used in future court proceedings without consent Signup and view all the answers

What is required for one party to force the other to arbitrate against their will?

An enforceable contractual agreement Signup and view all the answers

Which statement best describes the attitude of the court toward ADR as outlined in Rule 1.4(2)(e)?

The court may facilitate ADR when deemed appropriate Signup and view all the answers

Which characteristic distinguishes arbitration from negotiation?

It results in a legally binding solution Signup and view all the answers

What is a downside of court proceedings compared to ADR?

Court proceedings are conducted in open court and thus are more public Signup and view all the answers

What role does the independent third party play in non-determinative ADR?

They facilitate communication and trust between parties Signup and view all the answers

Which of the following does NOT represent a consideration when reflecting on dispute resolution strategies?

The legal qualifications of the parties Signup and view all the answers

Why are parties likely to be more accommodating in the presence of an independent third party?

To avoid appearing aggressive to each other Signup and view all the answers

How can the third party benefit the parties involved in a dispute?

By suggesting creative solutions that preserve dignity Signup and view all the answers

Which of the following best illustrates a feature of negotiation compared to arbitration?

It is non-binding and does not involve a third party. Signup and view all the answers

What might affect a client’s choice of dispute resolution process?

The costs and time involved in resolution Signup and view all the answers

What is a key feature of Alternative Dispute Resolution (ADR)?

It includes the possibility of an independent mediator. Signup and view all the answers

Which statement is true regarding the acceptance of Alternative Dispute Resolution (ADR) proposals by parties?

One party can suggest ADR, but the other parties are not obligated to agree. Signup and view all the answers

What can a party do at any stage before a solution is reached in ADR?

They can withdraw from the ADR process. Signup and view all the answers

In what circumstance can a court stay litigation?

If there's an ADR agreement that was broken by commencing litigation. Signup and view all the answers

What principle did O’Farrell J state regarding the enforceability of a dispute resolution agreement?

It must create an enforceable obligation for the parties to engage in ADR. Signup and view all the answers

What did the court rule in the case of Cable & Wireless v IBM UK Ltd regarding ADR?

The court directed the parties to pursue a previously agreed ADR method. Signup and view all the answers

In Ohpen Operations UK Ltd v Invesco Fund Managers Ltd, what was required before court proceedings could commence?

Completion of the tiered dispute resolution process. Signup and view all the answers

What is a common reason for courts to stay proceedings for ADR, even if there's no formal contract?

Due to case management considerations. Signup and view all the answers

Which of the following describes a tiered dispute resolution (DR) clause?

A structured process beginning with negotiation and ending with mediation. Signup and view all the answers

What is the main purpose of Early Neutral Evaluation (ENE) in legal cases?

To encourage settlement on key issues and reduce trial costs Signup and view all the answers

What happens to the judge's opinions expressed during the ENE process?

They remain confidential and do not influence future hearings Signup and view all the answers

Under what condition can the outcome of Judicial ENE be considered binding?

When all parties agree to the terms Signup and view all the answers

What is the typical status of documents reviewed during the ENE process?

Returned to the parties involved in the case Signup and view all the answers

In which division may an informal hearing of up to half a day be required during ENE?

Chancery Division Signup and view all the answers

Which statement correctly describes the confidentiality of the ENE process?

Discussions are confidential unless agreed otherwise Signup and view all the answers

What may happen to the trial time estimate if key issues are resolved through ENE?

It may decrease, leading to a shorter trial Signup and view all the answers

How does a judge in the King's Bench Division determine the level of formality required for the ENE opinion?

Based on the complexity and substance of the case Signup and view all the answers

What is one of the first steps that parties must take according to the ENE order?

Exchange position papers by 4pm on a given date Signup and view all the answers

What is the nature of the opinion provided by the Judge/Master after the ENE appointment?

It is informal and non-binding Signup and view all the answers

What is meant by 'without prejudice' in the context of the opinion provided by the Judge/Master?

The opinion does not affect the rights of the parties Signup and view all the answers

What should parties do with the papers related to the ENE after it concludes?

Remove them and keep them confidential Signup and view all the answers

What costs are incurred from the ENE process categorized as?

Costs in the case Signup and view all the answers

Which of the following accurately describes the role of an ombudsman in relation to litigation?

An ombudsman resolves complaints without requiring litigation Signup and view all the answers

What aspect of ADR does the content suggest can vary widely among schemes?

The types of disputes that can be resolved Signup and view all the answers

Which organization is mentioned as well-known for providing alternative dispute resolution in the travel industry?

ABTA arbitration scheme Signup and view all the answers

Study Notes

Alternative Dispute Resolution (ADR)

ADR is a method of resolving disputes using an independent third party.
ADR can be determinative or non-determinative.
Determinative ADR allows the third party to impose a solution.
Non-determinative ADR does not allow the third party to impose a solution.
ADR is voluntary; parties can withdraw at any time.
ADR is confidential.

Key Differences Between ADR and Other Dispute Resolution Methods

Litigation: Not voluntary; a party initiates a claim which cannot be withdrawn without cost.
Arbitration: Voluntary; parties agree to arbitration in advance. One party can force the other to arbitrate based on the contract.

Advantages of ADR

Cost-effective: Cheaper than litigation or arbitration due to quicker solutions.
Speed: Quicker solutions than other methods.
Flexibility: Parties can customize the process.
Preserving Relationships: Particularly useful in cases where parties intend to continue a relationship.
Commercial Realism: Third party may help parties to reach a solution.

Disadvantages of ADR

Non-Binding: Parties cannot be forced into ADR, even if they initially agree.
Incomplete Disclosure: Risk of a less than complete picture of the situation.
Enforceability: Arbitration awards can be enforced as court judgments; ADR awards aren't as readily enforceable.

Types of ADR

Mediation: Facilitative third party helps parties reach a settlement.
Conciliation: Mediator can offer solutions and make recommendations.
Med-arb: Mediation with a shift to arbitration if mediation fails.
Mini-trial: Structured procedure where parties present their case to an independent arbiter.
Expert Appraisal: Parties ask an expert to give an opinion.
Expert Determination: Parties agree on an expert's decision as binding.
Final Offer Arbitration: Parties present final offers to the arbitrator who chooses one.
Early Neutral Evaluation (ENE): Neutral party evaluates case which can help parties settle.

Organisations Providing ADR

Centre for Effective Dispute Resolution (CEDR): Organization offering ADR support.
ADR Group: Provides mediation, arbitration and training services.
Chartered Institute of Arbitrators: Offers arbitration services and expertise.
Royal Institution of Chartered Surveyors (RICS): Offers ADR services for members.
Mediation UK: Provides various types of mediation.

Considerations When Choosing ADR

Trust: Assess the trustworthiness of potential opponents.
Complexity: Complex legal issues may not be suitable for ADR.
Resources: Consider financial and temporal resources available.

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