#19716 - 4. Bpc Civil Litigation 2023 2024 Adjudicative And Non Adjudicative Adr - BPC Civil Litigation

If an offer is accepted an agreement is reached, saving time and money.

Can be done orally, but normally done in writing to ensure certainty as to the terms agreed.

Best suited to a case with relatively limited numbers of issues.

There is no set procedure to negotiation.

A flexible, cost-effective, confidential process which can be arranged relatively speedily, in which a neutral third party (the mediator) facilitates discussions and negotiations between the parties in dispute within a relatively structured but flexible process, in a formal setting, during a defined period of time, all of which helps create an impetus for settlement.

Can take at any stage of the trial, even pending an appeal.

If the parties have fully defined the issues, disclosed key information and quantified the claim and any counterclaim, the best time for mediation is before proceedings are issued.

Involves the use of a neutral third party.

There are many different types of mediation.

Communication in mediation is made without prejudice.

Normally, a neutral third party who facilitates negotiation between parties.

May propose a decision if the parties cannot reach one, though this is likely to be non-binding.

May not be appropriate in debt claims, as there is no defence and it may be more advantageous to issue proceedings.

A written assessment of some or all of the issues in a dispute by an independent third party who will provide an opinion of the merits of the case.

ENE can be carried out by a judge, in any court, with the aim of helping the parties to settle the case.

The Court can order ENE where one party does not consent.

The manner in which ENE is conducted is primarily decided by the evaluator, who may consult with the parties.

Both parties do not have to agree to ENR

Most large organisations have internal processes.

Parties should go through these processes first: e.g party should go through local authority complaints procedure before they contact the ombudsman.

A court may expect such a process to be used if it is potentially more cost-effective than litigation, but otherwise potential benefits and drawbacks will depend on the detail of the process.

Regulated by the Arbitration Act 1996.

Commonly used for commercial cases, it can also be appropriate in other areas where the parties want a binding decision to be reached using a particular approach.

Any application to stay proceedings for arbitration must be made by application notice to the court dealing with the proceedings.

• The application must be made before taking any step to answer the substantive claim; no step is taken where D merely opposes an application or makes an application for an extension of time to serve its defence.

The onus is on C to show that the dispute ought not to be referred to arbitration. There are two thresholds before a stay will be granted:

• Whether there is a concluded arbitration agreement

• Whether the issue in the proceedings is a matter under the arbitration agreement is to be referred to arbitration.

An arbitration claim form must contain:

• A concise statement of the remedy claimed;

• Any questions on which the claimant seeks the decision of the court;

• Give details of any arbitration award challenge and which parts are challenged;

• Show that any statutory requirements have been made;

• Identify if a costs order is sought; and

• Specify the person on whom the form is to be served.

Arbitration form must be served within 1 month from the date of the issue.

An arbitral award made in England may be enforced by bringing an ordinary civil claim on the award in the High Court.