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Arbitration Adr Notes

LPC Law Notes > Civil Ligitation Notes

This is an extract of our Arbitration Adr document, which we sell as part of our Civil Ligitation Notes collection written by the top tier of Cambridge And Oxilp And College Of Law students.

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Arbitration & ADR Professional Conduct Issues When advising clients on the pros/cons of different courses of action:

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P4 requires a solicitor to act in the best interests of each client.

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P5 provides that solicitors must provide a proper service to their clients.

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O(1.12) requires the clients are in a position to make informed decisions about the services they need, how the matter will be handled, and the options available to them.

Furthermore, endeavour to ensure you client understands the different COSTS involved (O(1.13) - best possible information about likely overall cost and IB(1.13) solicitors should discuss whether the potential outcomes are likely to justify the risk involved). Escalation Clauses Some contracts contains these, which set out a range of steps that should be taken in the event of a dispute. The usual order is:

1. Parties must negotiate in good faith

2. If that fails to resolve a dispute, the will mediate

3. If no settlement is reached at mediation, they will arbitrate

This can be helpful in providing the parties will a guide as to what the expected procedure will be in a dispute. NB: there can be certain difficulties will a mediation clause:

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It Is hard to gauge whether someone has complied with their obligations - someone may just arrive at the mediation and sit there, with no intention of actually mediating. It is hard to prove whether someone is negotiating in good faith.

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There is no guaranteed solution in any event.

Types of ADR 1) Expert Determination Description

Advantages

Disadvantages

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Quick

NOT SUITABLE for:

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Cheap

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Flexible - i.e. the parties' can agree it will be a non-binding decision (EARLY NEUTRAL EVALUATION - find out how the case may go in court)

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Confidential

This is where an independent expert on the subject matter is appointed by the parties.

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It is an inquisitorial process which results in a binding decision.

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The expert has no authority to make costs UNLESS the parties grant him such authority in the contract.

Cases with a number of issues that are relevant.

SUITABLE FOR:

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Disputes req. technical knowledge

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Cases with 1 main issue in contention 2) Mediation

Description

Advantages

Disadvantages

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It preserves commercial relationship

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Quick (takes a couple of weeks)

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Confidentiality

It requires good faith or it wont work (i.e. both parties actually trying to settle)

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VERY flexible - the solution can be anything you want whereas in lit/arb it is damages or nothing.

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Requires the agreement of both parties.

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Issues of enforceability

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Issue of COSTS (i.e. who pays?) - this can either be agreed by the parties or at trial.

A confidential process intended to facilitate DR through the medium of an impartial 3rd party.

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The mediator makes no binding decision - he is merely there to help the parties' come to an agreement.

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If the mediation fails, the content remains confidential and the content isn't made known to court.

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More informal and less adversarial

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