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Overview Of Adjudicative And Non Adjudicative Processes Notes

BPTC Law Notes > Alternative Dispute Resolution Notes

This is an extract of our Overview Of Adjudicative And Non Adjudicative Processes document, which we sell as part of our Alternative Dispute Resolution Notes collection written by the top tier of City Law School students.

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NON-ADJUDICATIVE - parties approve any proposed settlement

? parties control process and outcome
? NO 3rd party takes decision / imposes outcome
? inter-client discussion o parties settle personally; common with commercial clients
? written offers o usually in form of a letter; follows contractual principles o confusion can occur re: clarity of terms, especially if more than 1 exchange of letters

o often leads to negotiation o e.g. part 36 offers
? negotiation (see intro for more detail) o informal; discuss some or all issues with view to resolving o can be carried out in writing, by telephone, face-to-face, at court door o no set procedure o key elements (1) lawyer analyses case, ascertains client's objectives (must act within)

(2) lawyers agree venue, attendees (possible for any combo of parties, lawyers to negotiate), time

(3) (4) (5) (6) (7)

parties discuss objectives, facts etc. persuasion, argument, tactics seek and offer concessions with view to settlement offers for settlement record settlement in writing; terms subject to client approval

o timingbefore proceedings are issued (supported by pre-action protocols)following written offer to settlere: interim applicationsat court door

Advantages

Disadvantages

? flexible

? success depends on

? cheap
? client control: instructions, approval of settlements

? private, confidential, without prejudice (no reference to what happens in negotiation, unless relevant to later costs order / terms of settlement)

preparation, skill of negotiator, tactics, strategy

? client dissatisfaction with lack of involvement if lawyer-led

? confusion due to informality, especially if written

? overoptimistic inflexible instructions may preclude settlement (? mediation may be more suitable)

? hard to agree if neither side willing to concede

? mediation o neutral 3rd party facilitates settlement o no set procedure, but normally agreed in advance by written mediation agreement (enforceable contract between parties)

o key elements (1) possibility of mediation raised by parties or (if litigation commenced) court

(2) parties agree on mediation process, individual mediator, mediation service

(3) mediation agreement: venue, format, fee (often standard form w/ major mediation service providers)

(4) lawyers may prep file; share with all parties / just mediator (5) mediator may be briefed (6) the mediation (conducted according to agreement) (a) joint meeting mediator + lawyers + clients to clarify objectives, strengths, weaknesses

i. opening statements ii. Qs + discussion (b) separate meeting: mediator + lawyers and / or clients

(c) possibly further joint meetings (d) mediator confirms details of agreement; parties sign written memorandum of agreement

o timingcase must be sufficiently evaluatedBUT parties not to focussed on trial

o advantages and disadvantages (see mediation notes)
? mini trial / executive tribunal N.B. = a form of evaluative mediation

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