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BPTC Law Notes Alternative Dispute Resolution Notes

Alternative Dispute Resolution Notes

Updated Alternative Dispute Resolution Notes

Alternative Dispute Resolution Notes

Alternative Dispute Resolution

Approximately 357 pages

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Learning Outcomes

  • What is the range of ADR?

  • How to select which ADR procedure to use?

  • When to consider ADR?

  • Sanctions for failure to consider ADR?

What is ADR?

  • ADR means alternative dispute resolution.

  • It is resolving disputes out of court.

  • There is a scale of flexibility from absolute autonomy to quasi-litigation.

  • There are two main types of ADR: adjudicative and non-adjudicative. Both may use a TP to structure the debate, but the crux depends upon WHO decides the dispute: the parties (non-adjudicative), or a third party (adjudicative)?

Adjudicative ADR Non-Adjudicative ADR
DEF: Neutral TP decides the dispute DEF: Parties seek a compromise inter se.

  • Adjudication

  • Expert Determination

  • Arbitration

  • Early Neutral Evaluation

  • Negotiation

  • Mediation

  • Conciliation

AUTONOMY<--------------------------------------------------------------------------------->FORMALITY

NEGOTIATION <-------------ARBITRATION-------------> LITIGATION

What are the advantages and Disadvantages of ADR?

Advantages of ADR Disadvantages of ADR

  • Avoids "Litigation Risk"

  • If adjudicative ADR, there may be a quasi-litigation risk.

  • More flexible than litigation...

  • Parties with strong legal claim don't need to settle in litigation. They may have to in non-adjudicative ADR.

  • Simpler than litigation (less demanding, no strict evidential rules)

  • May waste time agreeing procedure, evidential rules etc.

  • Suits convenience of parties in place and time of hearing.

  • Certainty of Judge - ADR may lead to difficulties in agreeing arbitrator, and location of hearing.

  • Private and not public hearings

  • Confidentiality of Parties, and private hearings may be ordered in Court.

  • ADR jurisdiction is unlimited, whereas litigation is limited to actions raised in Statements of Case.

  • Some determinations may only be done by a Judge (eg: public law rights, rights under Wills, injunctions, approval of settlements relating to Protected Parties/children) thus making litigation inevitable.

  • ADR is less confrontational, thus is more adept at maintaining long term relationships.

  • ADR is difficult if multiple parties. No procedure for joining third parties.

  • Can be less expensive.

  • Fees to Mediator/Arbitrator may be more expensive than litigation in simple disputes.

  • Arbitration Awards are final, as are consent orders. So just as binding as litigation.

  • If non-adjudicative, ADR might not reach determination, so could be an expensive, time-consuming diversion.

  • Not necessarily final if mediator/arbitrator makes error of law or jurisdiction, as recourse to courts.

  • International Enforcement of Awards due to New York Convention 1958 (Arbitration) and Mediation Directive 2008/52 (Mediation)

Differences in types of Outcome:

ADR Court

  • Change in other party’s behaviour;

  • Putting right a mistake;

  • Promise that OP will not do something;

  • Repair or replacement of item;

  • Apology;

  • Explanation;

  • Compensation

  • Prohibitory Injunction (to stop tortious conduct)

  • Specific Performance of obligation;

  • Rectification of document or rescission of contract;

  • Return of property (land or goods)

  • Compensation

  • Declaration about rights of parties;

Pre-Action Protocol

  • Pre-Action Protocols require parties to consider the use of ADR.

  • The parties must explain their failure to use ADR in the Statements of Case

  • The OO requires the court to actively manage cases.

    • Active Case Management includes considering use of ADR;

    • Parties may apply to court for proceedings to be stayed and referred to ADR, or other means. The court can also do this of its own initiative if appropriate.

    • In determining costs, the court may look at ADR compliance.

  • Para8.1, 4.4(3) - Parties are warned that the court may require evidence of ADR.

  • ALL pre-action protocols refer to ADR. But it is expressly recognised that no party can or should be forced to mediate!

  • For PI claims, see para2.16-2.19 PI Protocol.

  • It is expressly recognised that not party can, or should, be forced to mediate or enter into any form of ADR!

  • HMCTS Small Claims Mediation Service - Automatic referral for all small claims below 10,000.

  • There is also a CoA mediation service by CEDR (Centre for Effective Dispute Resolution) When permission to appeal is sought, the single Lord Justice considers whether case ripe for mediation. If so, Head of Civil Appeals refers to CEDR. CEDR writes to the parties to arrange mediation hearing. Offered choice of 3 mediators. Prticipation is voluntary, and CEDR will only act if all parties agree. Parties remain Free to terminate at any time by giving notice to CEDR or CAO without reasons. All PI and contract appeals upto 100k for which permission to appeal is given will be expected to mediate disputes unless presiding judge says otherwise.

Costs Consequences of Failure to Consider/Use ADR

  • This is backed up by costs sanctions if parties unreasonably refuse to use ADR.

  • Reasonableness depends upon (Halsey v MK NHS):

    • Nature of the case (where injunctive relief is required, not suitable!);

    • Merits of case (e.g.: If one party has a very strong case);

    • Extent to which other ADR methods have been attempted;

    • Whether ADR costs would be disproportionately large;

    • Whether any delay in arranging ADR would be prejudicial;

    • Whether ADR had a reasonable prospect of success;

    • Whether court has made an ADR order;

    • Is it the right time to seek ADR? Premature attempts at ADR may waste costs.

    • Failing to respond to an invitation is unreasonable PGF II SA v OMFS Co.

  • What are the costs consequences?

    • Costs payable are at the discretion of the court per s51 SCA 1981 and r44.2 CPR. The "general rule" is that an unsuccessful litigant will pay the whole of the winner’s costs - r44.2(2) CPR. The judge must give reasons for departing...

    • In exercising its discretion, the court must have regard to all the circumstances and in particular under r44.2(4)-(5) CPR -

      • Conduct before/during proceedings;

      • Compliance with Pre-Action Protocol;

      • Whether it was...

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