#10320 - Overview Of Adjudicative And Non Adjudicative Processes - BPC Alternative Dispute Resolution

NON-ADJUDICATIVE - parties approve any proposed settlement

• parties control process and outcome

• NO 3rd party takes decision / imposes outcome

• inter-client discussion

  • parties settle personally; common with commercial clients

• written offers

  • usually in form of a letter; follows contractual principles

  • confusion can occur re: clarity of terms, especially if more than 1 exchange of letters

  • often leads to negotiation

  • e.g. part 36 offers

• negotiation (see intro for more detail)

  • informal; discuss some or all issues with view to resolving

  • can be carried out in writing, by telephone, face-to-face, at court door

  • no set procedure

  • 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. parties discuss objectives, facts etc.

4. persuasion, argument, tactics

5. seek and offer concessions with view to settlement

6. offers for settlement

7. record settlement in writing; terms subject to client approval

   • timing

     • before proceedings are issued (supported by pre-action protocols)

     • following written offer to settle

     • re: interim applications

     • at court door

• mediation

  • neutral 3rd party facilitates settlement

  • no set procedure, but normally agreed in advance by written mediation agreement (enforceable contract between parties)

  • 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)

   1. joint meeting mediator + lawyers + clients to clarify objectives, strengths, weaknesses

      1. opening statements

      2. Qs + discussion

   2. separate meeting: mediator + lawyers and / or clients

   3. possibly further joint meetings

   4. mediator confirms details of agreement; parties sign written memorandum of agreement

   • timing

     • case must be sufficiently evaluated

     • BUT parties not to focussed on trial

   • advantages and disadvantages (see mediation notes)

• mini trial / executive tribunal N.B. = a form of evaluative mediation

  • used in corporate disputes

  • panel = senior execs from each company, chaired by neutral adviser (appointed privately / by ADR provider)

  • even if overall settlement not reached, may be on some issues narrow issues for trial

  • key elements

1. written submissions + supporting documents (parties control what to provide)

2. the hearing

1. formal legal oral submissions

2. possibly witnesses and experts

3. panel adjourns: neutral adviser may: act as mediator / take evaluative role (if asked)

• conciliation N.B. overlap with evaluative mediation

  • neutral 3rd party facilitates negotiation between parties rather than mediating between position

  • no clear distinction with mediation

• early neutral and / or expert evaluation

  • evaluator (independent 3rd party) assesses some / all issues in case

  • appropriate if case turns on limited issues requiring expertise

  • evaluator = suitable agreed expert respected by both parties / independent person with legal knowledge

  • evaluator usually produces written report on specified issues, containing findings / provisional recommendations, as specified by parties

  • no set procedure

  • key elements

1. early neutral evaluation clause in contract / parties agree to early neutral evaluation once dispute arises

2. parties agree: evaluator, issues, info to provide to evaluator, what evaluator to decide

3. agreed info provided to evaluator, usually in writing, sometimes face-to face

4. evaluator produces report

5. parties decide how to proceed in light of report

1. if report clear, agree terms

2. may need negotiation / mediation on terms

   • timing: ASAP once issues ID'd

ADJUDICATIVE - 3rd party takes decision

• decision made by independent 3rd party

• parties have more control over process and 3rd party than in litigation

• arbitration

  • an alternative to litigation

  • key elements

1. arbitration clause in contract / parties agree once dispute arises

2. parties agree arbitration service / arbitrator

3. arbitration agreement: parties enter written agreement re: conduct of arbitration (often standard form)

4. pre-hearing steps as agreed e.g. info to arbitrator

5. the arbitration

6. the decision: normally written

7. sometimes, appeal to a court

• adjudication

  • used in specialist commercial fields where parties prefer industry-tailored process; adjudicator has specialist knowledge

  • process laid down in advance in agreed industry terms / by body providing adjudication

  • usually adjudication clause in contract

  • key elements cf arbitration adapted to industry needs

• expert determination

  • various options:

1. expert appointed to decide case - appropriate if only / main issues require expert knowledge + full adjudication unnecessary

2. expert assists adjudicator - e.g. report on specified issues

OTHER OPTIONS

• hybrids

  • med-arb

    • mediation + if no agreement, mediator can act as arbitrator to impose binding / non-binding outcome as agreed

    • if parties commence process by arbitration agreement (need dispute), if settlement reached at mediation, parties can appoint mediator as arbitrator and ask to draw up settlement agreement as arbitration consent award

• CEDR allows mediation window to be inserted into arbitration at request of parties; when awarding costs tribunal can consider unreasonable refusal of party to use

• arb-med

  • simplified arbitration producing sealed arbitration award + mediation (arbitrator acts as mediator); if CAN'T settle, reveal sealed award / if settle, sealed award NOT opened

  • uncertainty of sealed award induces settlement

• processes for dealing with grievances

  • internal systems

    • deal with formal complaints from customers before escalate into contentious disputes e.g. codes of conduct, schemes supported by legislation

• ombudsmen

  • independent from organisations they investigate

  • usually require internal process to have been exhausted first

  • documents only process