A Practical Approach to Alternative Dispute Resolution

Name: A Practical Approach to Alternative Dispute Resolution
Price: 6090 ISK
Availability: InStock
Author: Susan Blake; Julie Browne; Stuart Sime
ISBN: 9780192555953

Höfundar: Susan Blake; Julie Browne; Stuart Sime (Útgáfa: 5)

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A Practical Approach to Alternative Dispute Resolution provides a comprehensive and easily digestible commentary on all of the major areas of out-of-court dispute resolution. Designed to support teaching and learning on the Bar Professional Training Course, it will also be of interest to practitioners who are looking for a clear exposition of the range of ADR processes. Written by an authoritative and highly respected author team, this book contains a range of features designed to enhance the reader's understanding of the key points, including sample documentation, flow diagrams, tables, further resources, and examples drawn from a range of different types of practice.

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Útgefandi: Oxford University Press Academic UK

ISBN: 9780192555953

Print ISBN: 9780198823094

Format: ePub

Útgáfa: 5

Höfundar: Susan Blake; Julie Browne; Stuart Sime

Tungumál: English

Útgefið: 2018-08-15

Prent takmörkun á líftíma: 100

Prent takmörkun: 2

Afritunar takmörkun: 2

Flokkar: Lögfræði

Efnisflokkar: Professional, Career & Trade › Law › Law

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Cover
Title
Copyright
Preface
Acknowledgements
Contents Summary
Glossary and abbreviations
Table of cases
Table of statutes
PART I HISTORY AND RANGE OF ADR METHODS
1 INTRODUCTION
A BACKGROUND
B WHAT IS ADR?
C WHY IS THERE A NEED FOR ADR?
D THE GROWTH OF ADR OPTIONS
E COURT RECOGNITION OF ADR
F ADR AND THE REVIEW OF CIVIL LITIGATION COSTS
G RECENT DEVELOPMENTS
H THE INTERNATIONAL CONTEXT
I SOME ISSUES WITH REGARD TO ADR
J POTENTIAL ADVANTAGES OF ADR
Lower cost
Speed of settlement
Control of process
Choice of forum
A wider range of issues may be considered
Wider range of potential outcomes
Flexibility of process
Flexibility with regard to evidence
Confidentiality
Use of a problem-solving approach
Possible reduction of risk
Client satisfaction
K POTENTIAL DISADVANTAGES OF ADR
Increased expense
Additional delay
Possible reduction in outcome compared to a court judgment
Lack of a clear and public finding
Loss of potential strategic use of procedural steps
Loss of potential advantages of evidential rules
Confusion of process
L WEIGHING UP DISPUTE RESOLUTION OPTIONS
M THE PSYCHOLOGY OF DISPUTE ESCALATION
N ASSESSING THE SUCCESS OF ADR
O OVERVIEW OF REGULATORY FRAMEWORKS
P OVERVIEW OF TRAINING AND ACCREDITATION
KEY POINTS SUMMARY
2 OVERVIEW OF ADR OPTIONS
A KEY ELEMENTS OF ADR OPTIONS
B THE ROLE OF THE LAWYER WITH REGARD TO ADR OPTIONS
C NON-ADJUDICATIVE ADR OPTIONS
Inter-client discussion
Written offers
Negotiation
Mediation
Conciliation
Early neutral and/or expert evaluation
D ADJUDICATIVE ADR OPTIONS
Arbitration
Adjudication
Expert determination
E OTHER OPTIONS
Hybrids
Processes for dealing with grievances
Specialist systems
IT-based options
Dispute management systems
Complex dispute resolution
KEY POINTS SUMMARY
3 FACTORS INFLUENCING THE SELECTION OF AN ADR OPTION
A LEGAL ADVICE ON APPROPRIATE DISPUTE RESOLUTION OPTIONS
Overcoming possible problems in advising on ADR
The professional duty to give advice
When to give advice on ADR options
B ADVANCE SELECTION OF AN ADR OPTION
C FACTORS INFLUENCING ADR SELECTION
Is jurisdiction an issue?
Is ADR inappropriate?
Is a court decision creating a precedent important?
Is a court order necessary?
What is the relative cost of possible options?
How important is expert knowledge?
Is confidentiality important?
How much control does the client want?
What are the main objectives of the client?
Is a future relationship important?
What is the relevance of the chances of success?
Does the client want a ‘day in court’?
Would neutral assistance be valuable?
What stage has the case reached?
How important might interim orders be?
Might orders relating to evidence be needed?
What is the attitude of the court?
Might enforcement be an issue?
D POTENTIAL CONCERNS ABOUT ADR
ADR can undermine litigation
Proposing ADR suggests a lack of faith in your case
ADR can undermine a lawyer’s control of a case
ADR does not really save costs
ADR is a way of getting something for a weak case
ADR involves too much pressure to settle
ADR is used as a delaying tactic
ADR is not a robust process
E SECURING AGREEMENT TO ADR
Suggest specific benefits that ADR might offer
Offer information about ADR options
Propose a simple ADR option
Address any concerns that you think an opponent might have
Offer to pay reasonable ADR fees
Seek to persuade a judge to order a stay
F CONFIDENTIALITY IN RELATION TO ADR PROCESSES
G TIMING THE USE OF ADR
KEY POINTS SUMMARY
4 FUNDING ADR PROCEDURES
A THE FUNDING CONTEXT
B GENERAL CONSIDERATIONS
What are the main elements of expense in the case?
How much is at stake in the case?
How is the case being funded?
The extent to which expense has already been incurred
The chances of success
The possibility that costs may be recovered or liability for costs may shift
C ELEMENTS OF EXPENSE
Solicitor fees
Barrister fees
Evidence and information
Disbursements
Process fees
D WHAT ADR PROCESSES COST
ADR provider’s fee
Negotiation
Mediation
Arbitration
Other forms of ADR
E EFFECTS OF THE FUNDING BASIS
Conditional fee agreement funding
Damages-based agreement
Insurance
Third-party funding
Legal Aid Agency funding
F SHIFTING THE LIABILITY FOR COSTS—PART 36 OFFERS
G CONSIDERATIONS FOR THE PARTIES
H OVERALL FINANCIAL ANALYSIS AND RISK ASSESSMENT
I BASIC EXAMPLE OF ADR FINANCIAL CONSIDERATIONS
KEY POINTS SUMMARY
5 ONLINE ADR OPTIONS AND ODR
A INTRODUCTION
B BACKGROUND
C THE MAIN BODIES CONCERNED WITH ODR
D THE ROLE OF TECHNOLOGY IN ADR
E THE ROLE OF TECHNOLOGY IN COURT PROCESSES
F ODR SOFTWARE OPTIONS
G DEVELOPMENT OF ADR AND ODR WITHIN THE EUROPEAN UNION
H LOOKING FORWARD
KEY POINTS SUMMARY
6 PROFESSIONAL ETHICS
A INTRODUCTION
B ADVISING ON ADR OPTIONS
C LAWYERS PROVIDING AN ADR SERVICE
D COMPLIANCE WITH CORE PROFESSIONAL DUTIES
To act at all times in the client’s best interests
To act within the client’s instructions
To maintain client confidentiality
To act competently
To act with integrity
To be independent
Not to mislead anyone
Not to bring the system of justice into disrepute
Not to make threats
E SPECIFIC DUTIES IN NEGOTIATION AND MEDIATION
F THE DUTY OF CONFIDENTIALITY
Introduction
The extent of the duty
Confidentiality in mediation
Confidentiality in early neutral evaluation and expert determination
Confidentiality in adjudicative processes such as arbitration and adjudication
G LEGAL PROFESSIONAL PRIVILEGE
H WITHOUT PREJUDICE COMMUNICATIONS
Exceptions to the without prejudice communications rule
I PRACTICAL CONSIDERATIONS
J DISCLOSURE OF INFORMATION IN ADR PROCESSES
Non-adjudicatory ADR and expert determination
Adjudication and arbitration
K AUTHORITY TO SETTLE
L THE RELATIONSHIP BETWEEN BARRISTERS AND THEIR PROFESSIONAL CLIENTS IN ADR
KEY POINTS SUMMARY
PART II THE INTERPLAY BETWEEN ADR, CPR, AND LITIGATION
7 THE APPROACH OF THE COURTS TO ADR
A INTRODUCTION
B PRE-ACTION PROTOCOLS
Practice Direction—Pre-Action Conduct and Protocols
The pre-action protocols
The Pre-action Protocol for Possession Claims based on Mortgage or Home Purchase Plan Arrears in Respect of Residential Property
The Pre-action Protocol for Construction and Engineering Disputes
Family proceedings
C THE COURT GUIDES
The Admiralty and Commercial Courts Guide
The Chancery Guide
The Queen’s Bench Guide
The Technology and Construction Court Guide
The Circuit Commercial (Mercantile) Court Guide
D THE OVERRIDING OBJECTIVE AND ADR
E ACTIVE CASE MANAGEMENT AND ADR
A more robust approach since 1 April
Case management orders and ADR
Part 36 offers to settle
F COSTS MANAGEMENT AND ADR
G DIRECTIONS QUESTIONNAIRES AND ADR
H GRANTING STAYS FOR ADR
I JUDICIAL ENCOURAGEMENT OF ADR
J THE APPROACH OF THE COURTS TO CONTRACTUAL ADR CLAUSES
K COSTS ALTERNATIVE DISPUTE RESOLUTION
L CAN THE COURT COMPEL THE PARTIES TO USE ADR?
KEY POINTS SUMMARY
8 THE SANCTIONS FOR REFUSING TO ENGAGE IN ADR PROCESSES
A INTRODUCTION
B THE COURT’S GENERAL POWERS TO MAKE COSTS ORDERS
C ADVERSE COSTS ORDERS AGAINST A PARTY WHO FAILS TO COMPLY WITH THE PRE-ACTION PROTOCOLS
D ADVERSE COSTS ORDERS AGAINST A PARTY WHO UNREASONABLY REFUSES TO CONSIDER ADR
The nature of the dispute
The merits of the case
The extent to which other settlement methods have been attempted
Whether the costs of ADR would be disproportionately high
Whether any delay in setting up and attending ADR would be prejudicial
Whether ADR had a reasonable prospect of success
E OTHER FACTORS
Whether an ADR order was made by the court
Obtaining further information or evidence before using ADR
Both parties at fault
F REJECTING ADR AFTER JUDGMENT AND BEFORE THE HEARING OF AN APPEAL
G DELAY IN CONSENTING TO ADR
H BACKING OUT OF AN AGREED ADR PROCESS
I UNREASONABLE CONDUCT IN THE MEDIATION
J IMPOSING A COSTS CAP ON SOLICITOR–CLIENT COSTS FOR FAILING TO PURSUE ADR
K INDEMNITY COSTS ORDERS FOR FAILING TO CONSIDER ADR
L WHAT PRACTICAL STEPS SHOULD BE TAKEN BY A PARTY TO AVOID SANCTIONS?
M HOW DOES THE COURT TREAT PRIVILEGED MATERIAL WHEN SEEKING TO IMPOSE SANCTIONS?
KEY POINTS SUMMARY
9 RECOVERY OF ADR COSTS IN LITIGATION
A INTRODUCTION
B COSTS OF INTERIM APPLICATIONS RELATING TO ADR
C RECOVERY OF THE COSTS OF UNSUCCESSFUL ADR PROCESSES
Costs of failed ADR as part of the costs of litigation
The agreement between the parties determines liability in respect of ADR costs
The parties make no agreement about the costs of the ADR process
Agreement between the parties for the costs of the ADR process to be costs in the case
Settlement or determination on all issues apart from costs
D RECOVERING THE COSTS OF AN ADR PROCESS AS DAMAGES
KEY POINTS SUMMARY
PART III NEGOTIATION AND MEDIATION
10 OVERVIEW OF NEGOTIATION AND MEDIATION
11 STYLES, STRATEGIES, AND TACTICS IN NEGOTIATION
A THE IMPORTANCE OF STYLE, STRATEGY, AND TACTICS
B STYLES
Co-operative
Competitive/confrontational
Choice of style
C STRATEGIES
Co-operative
Competitive or positional
Collaborative—principled or problem solving
Pragmatic
Choice of strategy
Interaction of strategies
D TACTICS
Tactics relating to information
Tactics relating to offers and demands
Tactics relating to structure
Tactics relating to presentation
Tactics relating to law
KEY POINTS SUMMARY
12 PREPARING FOR NEGOTIATION
A THE IMPORTANCE OF PREPARATION
B IDENTIFYING THE OBJECTIVES
C THE IMPORTANCE OF THE PROCEDURAL STAGE THE CASE HAS REACHED
The case is at a very early stage
The case is at a pre-action protocol stage
After the issue of proceedings
The case is being prepared for trial
D IDENTIFYING THE ISSUES
E THE RELEVANCE OF THE LEGAL CONTEXT
F PREPARING TO DEAL WITH FACTS AND EVIDENCE
The client’s view of the facts and evidence
The opponent’s view of the facts and evidence
Dealing with gaps and ambiguities
Preparing to deal with facts and information in negotiation
G PREPARING TO DEAL WITH FIGURES
H IDENTIFYING PERSUASIVE ARGUMENTS
Arguments based on the application of the law
Arguments based on facts
Merit-based or moral argument
Practical or personal arguments
Mixed arguments
I PLANNING POTENTIAL DEMANDS, OFFERS, AND CONCESSIONS
Plan what you will seek from the other side
Plan how and when you will ask
Plan what you might offer
Plan how and when you might make offers
J LINKING CONCESSIONS
K IDENTIFYING THE BATNA
L IDENTIFYING THE WATNA
M CLARIFYING YOUR INSTRUCTIONS AND AUTHORITY
KEY POINTS SUMMARY
13 THE NEGOTIATION PROCESS
A WHEN, HOW, AND WHERE
B WHO
C COMMUNICATING EFFECTIVELY
Reciprocal or ‘mirroring’ behaviour
Effective presentation
Responding effectively
Questioning effectively
Listening effectively
D STRUCTURE AND AGENDA SETTING
E OPENING
Open by agreeing an agenda
Open with a statement or a proposal
Start by asking some key questions
Invite your opponent to open
Start with items that can be agreed easily
Start with items where your case is strong
Make limits on authority clear
Refer to privilege for discussion
Dealing with problems in opening
F SEEKING INFORMATION
G MAKING YOUR CASE ON THE ISSUES
Presenting the merits of your case
Addressing weaknesses in your case
Bringing out weaknesses in your opponent’s case
Proposing an outcome
Additions to oral argument
H PLANNING AND TIMING CONCESSIONS, OFFERS, AND DEMANDS
Implementing concession plan
Gaining concessions
Making demands
Making concessions
Linking concessions
Making offers
Reaching a deal
Bargaining tactics
I MAKING PROGRESS
J DEALING WITH DIFFICULTIES
Gaps in information
Getting bogged down, or reaching deadlock
Dealing with a poorly prepared opponent
Dealing with a very competitive opponent
Frustration and emotion
Concern about possible inexperience
K REACHING A CLOSE-SETTLEMENT OR BREAKDOWN
Making an oral contract
Recording the outcome
No agreement is reached
KEY POINTS SUMMARY
14 MEDIATION: GENERAL PRINCIPLES
A WHAT IS MEDIATION?
B WHY IS MEDIATION AN EFFECTIVE ADR PROCESS?
C JUDICIAL ENDORSEMENT OF MEDIATION
D DISPUTES SUITABLE FOR MEDIATION
E THE ADVANTAGES OF MEDIATION
F DOES MEDIATION WORK?
G WHY DO THE PARTIES USE MEDIATION?
H WHAT CAN BE DONE TO MAKE A RELUCTANT PARTY ENGAGE IN MEDIATION?
Mediation Information Assessment Meetings
I THE TIMING OF MEDIATION
Before litigation begins
After litigation begins
J THE COSTS OF MEDIATION
The party’s own costs of preparing for the mediation
The mediator’s fee
Expenses of the mediation
K THE FUNDING OF MEDIATION COSTS, FEES, AND EXPENSES
Public funding
Funding under a CFA
L STYLES OF MEDIATION
Facilitative mediation
Evaluative mediation
Transformative mediation
M THE ROLE OF THE MEDIATOR
Organizing the mediation process
Acting as a facilitator
Acting as intermediary
Post-mediation role
N ACCREDITATION AND REGULATION OF MEDIATION
Introduction
Training requirements
O THE CIVIL MEDIATION COUNCIL
The CMC Mediation Provider Registration Scheme
The CMC Individual Registration Scheme
Is further regulation required?
P ETHICAL CONSIDERATIONS AFFECTING MEDIATORS
Competence
Independence and neutrality
Impartiality
The mediation procedure
Fairness
Confidentiality
Termination of the mediation
Repeat instructions
Practice administration
Q THE WITHOUT PREJUDICE RULE IN MEDIATION
Communications that are not protected by the without prejudice rule in mediation
Can the mediator rely on the without prejudice rule?
R LEGAL ADVICE PRIVILEGE IN MEDIATION
S CONFIDENTIALITY IN MEDIATION
Example of a confidentiality clause
Information given to the mediator
Can the mediator enforce the confidentiality clause?
When will the court override the confidentiality provisions in the interests of justice?
Other exceptions to confidentiality
T THE MEDIATOR AS WITNESS
Should the law be reformed?
U CAN A MEDIATOR BE SUED?
Legal proceedings
Disciplinary proceedings
KEY POINTS SUMMARY
15 PREPARATION FOR THE MEDIATION
A INTRODUCTION
B SELECTING A MEDIATOR
The qualities required in an effective mediator
Factors influencing the selection of a mediator
C THE DURATION OF MEDIATION
D SELECTING A VENUE
E THE AGREEMENT TO MEDIATE
F PRE-MEDIATION MEETING/CONTACT
G THE ATTENDEES
Representatives of the parties
Person with authority to settle
Lawyers
Insurers
Interest groups
Experts
Witnesses of fact
H THE POSITION STATEMENTS
The aims in drafting the position statement
The content of the position statement
Joint position statement
I THE KEY SUPPORTING DOCUMENTS
Agreed bundle
Confidential bundles
J DISCLOSURE OF POSITION STATEMENTS AND DOCUMENTS
K OTHER DOCUMENTS THAT THE PARTIES MAY WISH TO BRING TO THE MEDIATION
L OTHER INFORMATION THAT THE MEDIATOR MAY SEEK FROM THE PARTIES BEFORE THE MEDIATION
M RISK ASSESSMENT
N OPTIONS FOR SETTLEMENT
O SPECIMEN SETTLEMENT CLAUSES
P CONCLUSION
KEY POINTS SUMMARY
16 THE MEDIATION PROCESS
A WHEN DOES THE MEDIATION START?
B THE STAGES IN MEDIATION
C THE OPENING STAGE
Introductions
The opening joint meeting (plenary session)
Opening statements by the parties
Witnesses and experts
Closing the opening joint meeting
Extension of the plenary session
The separate private meetings (or closed meetings)
D THE EXPLORATION/INFORMATION STAGE
Carrying out a ‘reality test’
Probing the underlying issues
Devising options for settlement
E THE NEGOTIATING/BARGAINING STAGE
Acting as a shuttle-diplomat
Devising strategies to help the parties work through deadlock
F JOINT OPEN MEETINGS IN THE EXPLORATION OR BARGAINING STAGE
Joint meetings of representatives of the parties
Joint meetings between the lay clients
Joint meetings of the experts
G THE SETTLEMENT/CLOSING STAGE
If settlement is reached
If no settlement is reached
H THE CLOSING JOINT MEETING
I TERMINATION AND ADJOURNMENT OF THE MEDIATION
J THE MEDIATOR’S ROLE FOLLOWING THE CONCLUSION OF THE MEDIATION
K THE MAIN VARIATIONS IN THE PROCESS
Evaluative mediation
Evaluation of the merits of the case requested by both parties
Evaluation of one or more issues requested by one party only
Med-Arb
Arb-Med
Telephone mediations
Mediations conducted online
L THE ROLE OF THE ADVOCATE IN MEDIATION
Preparation and case analysis
Mediation advocacy
Advisory skills in mediation
Delivery of the opening statement at the opening joint meeting
The advocate’s role during private closed meetings
Settlement
KEY POINTS SUMMARY
17 REACHING A SETTLEMENT
A CONTRACTUAL PRINCIPLES
B ORAL AGREEMENT AND EMAIL
C THE RESPONSIBILITIES OF THE LAWYER
D CHECKING COVERAGE AND DETAIL
E RECORDING THE OUTCOME
F BUILDING IN ENFORCEABILITY
G IF NO AGREEMENT IS REACHED
KEY POINTS SUMMARY
18 COURT MEDIATION SCHEMES AND OTHER SCHEMES
A INTRODUCTION
B HISTORIC SCHEMES
The Central London County Court Voluntary Mediation Pilot Scheme
The Central London County Court Compulsory Mediation Pilot Scheme
The National Mediation Helpline
C CURRENT COURT MEDIATION SCHEMES
The Mayor’s and City of London County Court Mediation Scheme
The HMCTS Small Claims Mediation Scheme
The Court of Appeal Mediation Scheme
The West Midlands Family Mediation Scheme
County court local schemes
D MEDIATION INFORMATION PILOT COURT SCHEMES
The Birmingham, Manchester, and Central London County Courts Mediation Information Pilot Schemes
The Court of Appeal Mediation Pilot Scheme
The Central London County Court Pilot Scheme
E THE CIVIL MEDIATION ONLINE DIRECTORY
F FIXED PRICE MEDIATION SCHEMES
G JUDICIAL MEDIATION SCHEMES
The Court Settlement Process in the Technology and Construction Court
Judicial mediation in family cases
Judicial mediation in Employment Tribunals
H MEDIATION IN SPECIFIC CASES
Mediation in cases in the Commercial Court
Complex construction, engineering, and technology disputes
Family cases
Workplace mediation
Mediation in employment disputes
Mediation in personal injury cases
I MEDIATING MULTI-PARTY DISPUTES
J OTHER SPECIALIST MEDIATION SCHEMES
K OTHER MEDIATION PROCESSES
Project mediation
The mini-trial or executive tribunal
Consensus-building mediation in environmental disputes or disputes that involve public policy issues
Deal mediation
L RESTORATIVE JUSTICE
M COMMUNITY MEDIATION
N PRO BONO MEDIATION AND LAWWORKS
KEY POINTS SUMMARY
19 INTERNATIONAL MEDIATION
A INTRODUCTION
B THE ADVANTAGES OF MEDIATION IN INTERNATIONAL DISPUTES
C PREPARATION FOR MEDIATION IN INTERNATIONAL DISPUTES
D THE PROCESS IN INTERNATIONAL MEDIATION
E THE GROWTH OF MEDIATION IN EUROPE
F A MOVE TOWARDS HARMONIZING PRACTICES IN INTERNATIONAL MEDIATION
G THE EU DIRECTIVE ON MEDIATION IN CIVIL AND COMMERCIAL CASES (DIRECTIVE 2008/52/EC)
The objective of the Directive
The application of the Directive
Implementation of the Directive by the United Kingdom
The main provisions of the Directive and the implementation of these provisions by the United Kingdom
Application of the Directive to domestic mediations
Implementation of the EU Mediation Directive in other member states
H THE EUROPEAN CODE OF CONDUCT FOR MEDIATORS
I ENFORCEABILITY OF INTERNATIONAL MEDIATION SETTLEMENT AGREEMENTS
KEY POINTS SUMMARY
PART IV EVALUATION, CONCILIATION, AND OMBUDSMEN
20 CONCILIATION
A WHAT IS CONCILIATION?
B AN OUTLINE OF THE PROCESS
C ADVISORY, CONCILIATION AND ARBITRATION SERVICE
Mandatory Early Conciliation
Post-claim conciliation
Collective conciliation
D CONCILIATION IN FAMILY CASES
The process
E JUDICIAL CONCILIATION IN SMALL CLAIMS CASES
F OTHER CONCILIATION SCHEMES
The Disability Conciliation Service
The Furniture Ombudsmen Conciliation Scheme
KEY POINTS SUMMARY
21 COMPLAINTS, GRIEVANCES, AND OMBUDSMEN
A INTRODUCTION
B COMPLAINTS AND GRIEVANCE PROCEDURES
Definitions
Complaints handling
Complaints against solicitors
Employment grievances
Acting for a party in a complaint
Decisions in complaints and grievance investigations
Effectiveness of complaints and grievance procedures
Information following exhaustion of complaints procedures
C OMBUDSMEN
Complaints handling by ombudsmen
Procedure on references to ombudsmen
Grounds on which ombudsmen make their decisions
Effect of ombudsman’s decision
KEY POINTS SUMMARY
22 EARLY NEUTRAL EVALUATION
A WHAT IS EARLY NEUTRAL EVALUATION?
B AT WHAT STAGE SHOULD IT BE EMPLOYED?
C WHEN SHOULD IT BE USED?
D WHO SHOULD BE APPOINTED TO CARRY OUT THE EVALUATION?
E THE PROCEDURE
F NEUTRAL FACT FINDING
G JUDICIAL EVALUATION
Judicial evaluation in the Commercial Court
Judicial evaluation in the Technology and Construction Court
Judicial evaluation in the Chancery Division
Judicial evaluation in the Employment Tribunal
H EVALUATION IN PERSONAL INJURY CASES
KEY POINTS SUMMARY
PART V RECORDING SETTLEMENT
23 RECORDING SETTLEMENT
A REACHING AGREEMENT
B FORMS OF RECORDED OUTCOME
Compromise agreements
Full and final settlement
Subject to contract
C RECORDS MADE DURING THE ADR PROCESS
D WHO SHOULD PRODUCE A FORMAL RECORD?
E ENFORCEABLE FORMS FOR RECORDING SETTLEMENT
An oral contract
A written contract
An award with statutory authority
A court order
Other legal documents
F DRAFTING TERMS OF SETTLEMENT
G METHODS OF RECORDING SETTLEMENT AGREEMENTS
Exchange of letters
Contract or deed
Settlements where there are existing court proceedings
Endorsement on briefs
Interim order
Consent order
Tomlin order
Relitigating after settlement
H TERMS AS REGARDS COSTS
I INFORMING THE COURT OF SETTLEMENT
KEY POINTS SUMMARY
PART VI ADJUDICATIVE ADR
24 EXPERT OR NEUTRAL DETERMINATION
A INTRODUCTION
B WHEN SHOULD NEUTRAL OR EXPERT DETERMINATION BE USED?
Stage at which the parties may agree to expert determination
Cases where expert determination is particularly suitable
C AGREEMENT TO USE EXPERT (OR NEUTRAL) DETERMINATION
D THE GENERAL APPROACH OF THE COURTS TO EXPERT DETERMINATION
Contractual effect of expert determination clauses
Applications to stay court proceedings pending expert determination
E ADVANTAGES OF EXPERT DETERMINATION
F DIFFERENCES BETWEEN EXPERT DETERMINATION AND NEGOTIATION, MEDIATION, AND NEUTRAL EVALUATION
G SIMILARITIES WITH OTHER FORMS OF ADR
H SELECTION OF THE NEUTRAL OR EXPERT DETERMINER
I THE PROCESS
J CONFIDENTIAL INFORMATION
K THE NATURE OF THE DECISION
L REASONS FOR THE DECISION
M THE COURT IS THE FINAL DECISION MAKER AS TO WHETHER THE EXPERT HAS JURISDICTION
N OTHER GROUNDS FOR CHALLENGING A FINAL DECISION BY COURT PROCEEDINGS
Material departure from instructions
Fraud
Collusion
No reasons for decision
Manifest error
An error of law
Failure to act lawfully or fairly
The decision is not intended to be final on matters of construction
O PROCEDURE FOR MAKING A CHALLENGE
P ENFORCING A DECISION
Q SUING THE EXPERT
R HOW NEUTRAL OR EXPERT DETERMINATION DIFFERS FROM ARBITRATION
S DISPUTES REVIEW PANELS
KEY POINTS SUMMARY
25 CONSTRUCTION INDUSTRY ADJUDICATION
A INTRODUCTION
B NATURE OF ADJUDICATION
C REQUIREMENTS
Construction contract
Dispute
Requirement to include written terms for adjudication
D EXPRESS CONTRACTUAL RIGHT TO ADJUDICATION
E DEFAULT PROVISIONS IN THE SCHEME FOR CONSTRUCTION CONTRACTS
F COMMENCEMENT OF THE ADJUDICATION
Notice of adjudication: the commencement of adjudication
Ambit of the reference
Nomination of adjudicator
Referral notice
G PROCEDURE BEFORE THE HEARING
Response to referral notice
Subsequent statements of case
Timetable for procedural steps
Documents, questions, and impartiality
Site visits
Related disputes
Confidentiality
H ADJUDICATOR’S DECISION
Inquisitorial approach
Hearing
The decision-making process
Communicating decision to the parties
Reasons, interest, and costs
I BINDING, BUT INTERIM EFFECT, OF DECISIONS
J IMMUNITY OF ADJUDICATOR
K ADJUDICATION IN RESIDENTIAL BUILDING CONTRACTS
L COURT ENFORCEMENT OF SUM FOUND DUE ON ADJUDICATION
KEY POINTS SUMMARY
26 ARBITRATION
A INTRODUCTION
B ARBITRATION AND LITIGATION
C FUNDAMENTAL CONCEPTS IN ARBITRATION
D HISTORY OF ARBITRATION
E INTERPRETATION OF THE ARBITRATION ACT
F CONTRACTUAL FOUNDATION TO ARBITRATION
Separability of arbitration clause
Mandate of the arbitral tribunal
G REQUIREMENTS
Dispute or difference
Arbitrable dispute
Agreement to arbitrate
The arbitration agreement
Dispute must come within the arbitration agreement
Capacity
Conditions precedent to arbitration
H OVERVIEW OF ARBITRATION PROCEDURE
I GENERAL PRINCIPLES AND DUTIES
J FAIR RESOLUTION OF DISPUTES
Saving costs and expedition
General duty of the tribunal
Duty to follow the rules of natural justice
Arbitration need not be adversarial
K PARTY AUTONOMY
Mandatory and non-mandatory provisions
Sources of party agreement
L COURT APPLICATIONS
M DIFFERENT TYPES OF ARBITRATION
Institutional arbitration
Ad hoc arbitration
Non-binding arbitration
Statutory arbitration
Consumer arbitration
Med-arb
Family arbitration
N MULTI-TIERED DISPUTE RESOLUTION
O ONE-STOP ADJUDICATION
P EUROPEAN CONVENTION ON HUMAN RIGHTS AND ARBITRATION
Q MAIN FEATURES OF ARBITRATION
KEY POINTS SUMMARY
27 ARBITRAL TRIBUNALS
A INTRODUCTION
B COMMENCEMENT OF ARBITRATION
Importance of the date of commencement of an arbitration
Contractual time limits
Limitation periods
Date of commencement of arbitration
Avoiding the consequences of failing to comply with a time limit
C NOTICE OF ARBITRATION
D APPOINTMENT OF ARBITRAL TRIBUNAL
Number of arbitrators
Appointing the arbitrators
Chairperson
Umpire
Judges as arbitrators
Failure of appointment procedure
E CONTRACTUAL BASIS OF THE ARBITRATORS’ MANDATE
Qualifications of arbitrators
Impartiality and independence
F TERMS OF REFERENCE
G REMOVAL, RESIGNATION, AND VACANCIES
Removal
Resignation
Death
Vacancies
H IMMUNITIES
Immunity of arbitrators
Immunity of arbitral institutions
I LIABILITY FOR ARBITRATORS’ FEES
KEY POINTS SUMMARY
28 THE COMMERCIAL ARBITRATION PROCESS
A INTRODUCTION
B DEFINITION OF ‘COMMERCIAL’
C PRIVACY AND CONFIDENTIALITY
Privacy
Confidentiality
D RANGE OF PROCEDURAL APPROACHES IN ARBITRATION
E PROCEDURAL RULES GOVERNING THE ARBITRATION
Bespoke arbitration clause
Arbitral institution rules
Silence in institutional rules
F ROLE OF LEGAL REPRESENTATIVES IN ARBITRATION
Advice on the arbitration clause
Reference of a dispute to arbitration
Defining the issues
Putting together the case
Hearings
G COMMENCEMENT
H ‘LOOK-SNIFF’ ARBITRATIONS
I SHORT-FORM ARBITRATIONS
J GENERAL PROCEDURE IN COMMERCIAL ARBITRATION
Preliminary meeting
Procedural orders
Peremptory orders
Dismissal for inordinate and inexcusable delay
Statements of case
Evidence
Witness statements
Experts
Pre-trial hearing/conference
No right to an oral hearing
Bundles
Arrangements for the hearing
The hearing
The decision
Ex aequo et bono/amiable compositeur (equity clauses)
The award and appeals
K EXAMPLE OF ARBITRAL RULES THAT CLOSELY FOLLOW COURT PROCEDURES
Commencement of arbitration
Counter-notice
Appointment of tribunal
Procedure
Statements of case
Documents and samples
Directions
Hearings
Awards
Appeals
KEY POINTS SUMMARY
29 INTERNATIONAL ARBITRATION
A INTRODUCTION
B MEANING OF ‘INTERNATIONAL’ IN ARBITRATION
C ADVISING THE CLIENT
D SEAT
Designation of seat
Supervisory jurisdiction
Place of award
E PROBLEMS CAUSED BY DIFFERENT SYSTEMS OF LAW
F APPLICABLE LAW
Proper law of the contract
Law of the arbitration agreement
Jurisdiction Regulation (Brussels Convention)
Procedural law of the arbitration (curial law)
Law of the place of enforcement
Stateless arbitrations
G OBJECTIONS TO JURISDICTION
Procedures available for raising an objection to jurisdiction
Substantive jurisdiction
Time when an objection to jurisdiction should be taken
Reserving client’s position
Taking a step in the arbitration
Kompetenz-Kompetenz
Anti-suit injunctions
H PROCEDURAL MATTERS RELEVANT TO INTERNATIONAL ARBITRATION
Language of the arbitration
Meetings and hearings
Privilege
Security for costs
I ICC RULES OF ARBITRATION
Request for arbitration
Answer to the request
ICC arbitral tribunals
Seat of the arbitration
Terms of reference
Procedure prior to the hearing
Hearings and the decision
J UNCITRAL MODEL LAW ON INTERNATIONAL COMMERCIAL ARBITRATION
Interpretation of the Model Law
Commencement of Model Law arbitration
Model Law arbitral tribunals
Interim measures
Statements of case under the Model Law
Subsequent procedure
Hearings
KEY POINTS SUMMARY
30 ARBITRATION AWARDS AND ORDERS
A INTRODUCTION
B PROCEDURAL ORDERS
C INTERIM AWARDS AND AWARDS ON DIFFERENT ISSUES
D SETTLEMENT
E MAIN AWARDS
Majority decisions
Reasons
Seat of the arbitration
Date of award
Place where award is made
Remedies
Notification of award
Binding effect
F AWARD OF COSTS
KEY POINTS SUMMARY
31 HIGH COURT JURISDICTION IN ARBITRATION CLAIMS
A INTRODUCTION
B ORDERS TO PREVENT PARTIES BREACHING AGREEMENTS TO ARBITRATE
Stay of legal proceedings
Taking a step in the proceedings
Anti-suit injunctions
C APPOINTMENT, REMOVAL, AND REPLACEMENT OF ARBITRATORS
Extending time for beginning arbitral proceedings
Setting aside appointment of sole arbitrator
Failure of the appointment procedure
Removal of arbitrators
Relief from liability after resignation of an arbitrator
D PROCEDURAL ORDERS TO ASSIST IN THE DETERMINATION OF ARBITRAL PROCEEDINGS
Powers to secure evidence etc available to tribunals
Court jurisdiction on procedural matters
Disclosure in aid of arbitration
Interim injunctions
Applications for procedural orders
Exclusion of section
E JUDICIAL REVIEW OF ARBITRAL PROCEEDINGS
F PRELIMINARY POINTS OF LAW
Conditions to be satisfied
Procedure on applications on preliminary points of law
G SERIOUS IRREGULARITY
Meaning of ‘serious irregularity’
Substantial injustice
Loss of right to object
Powers available to deal with a serious irregularity
H APPEAL ON A POINT OF LAW
Question of law
No contrary agreement
No agreement to dispense with reasons
Tribunal asked to determine the point
Exhaustion of arbitral appeals and reviews
Point must arise from an award
Appeal must be made within 28 days
Agreement or permission to appeal
Permission of the court
Powers available to deal with points of law
I PROCEDURE IN ARBITRATION CLAIMS
Application or Part 8 claim
Time limit
Defendants to the arbitration claim
Courts having jurisdiction over arbitration claims
Procedure on arbitration claims
Hearings in arbitration claims under Part
J APPEALS TO THE COURT OF APPEAL
KEY POINTS SUMMARY
32 ENFORCEMENT OF SETTLEMENTS AND AWARDS
A INTRODUCTION
B BASIC METHODS OF ENFORCING COMPROMISE AGREEMENTS
C MERGER OR DISCHARGE OF ORIGINAL OBLIGATION BY COMPROMISE
Express term reviving old obligations in the event of non-performance
Compromise based on performance of the agreed terms
Compromise ineffective
D MAKING A CHOICE ON ENFORCEMENT OPTIONS
E ENFORCEMENT OF COMPROMISES RECORDED AS A CONTRACT
Enforcement by civil proceedings
Defences to claims for breach of compromise agreements
Bankruptcy and winding up
F CHALLENGING A SETTLEMENT RECORDED AS A CONTRACT
G ENFORCEMENT OF COURT ORDERS
H COSTS ONLY PROCEEDINGS
I ENFORCEMENT OF CONSTRUCTION INDUSTRY ADJUDICATION DECISIONS
J ARBITRATION SETTLEMENTS AND AWARDS
Negotiated settlements in arbitration proceedings
Enforcement of domestic arbitral awards
Recognition and enforcement of New York Convention arbitration awards
Grounds for refusing recognition or enforcement of a New York Convention award
Enforcement of Geneva Convention awards
KEY POINTS SUMMARY
Appendices
APPENDIX 1 CEDR Model Mediation Agreement (13th edn)
APPENDIX 2 Arbitration Act
Index