BPTC RODOC EXAM REVISION cards ADR

  • Created by: anto101
  • Created on: 22-08-18 20:30

RECORDING SETTLEMENTS PRE-ISSUE (NOT COURT)

  • Compromise agreements
  • Letter Exchange
  • Formal contract
  • Deed
  • (contract law applies to the above)
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COURT RECORDED SETTLEMENTS

JUDGMENT ENTERED FOR IMMEDIATE PAYMENT OF THE SUM AGREED TOGETHER WITH COSTS - Enforcement proceedings (by execution against goods, charging order, etc) can be taken 14 days after the judgment

JUDGMENT ENTERED FOR THE AGREED SUM (AND COSTS) SUBJECT TO A STAY OF EXECUTION PENDING PAYMENT BY STATED INSTALMENTS - If the instalments fall into arrears the stay will be lifted, and the judgment creditor can then bring enforcement proceedings

CONSENT ORDER SETTING OUT THE AGREEMENT IN THE FORM OF UNDERTAKINGS - If any of the terms are not complied with, enforcement may be possible immediately or on application to the court depending on the nature of the term in question 

TOMLIN ORDER - Substantive terms in a Tomlin order take effect and are enforceable as they stand without the need for any further court order.   In the event of the scheduled terms being breached, enforcement is a two-stage process.  First, the claim MUST be restored under the liberty to apply clause and an order obtained to compel compliance with the term breached.  A failure to comply with that order may be a contempt of court

CONSENT ORDER STAYING ALL FURTHER PROCEEDINGS UPON AGREED TERMS - The courts are very unwilling to remove the stay imposed by this type of order, so enforcement can usually be effected only by bringing fresh proceedings for breach of the compromise agreement

CONSENT ORDER PROVIDING FOR NO ORDER SAVE AS TO COSTS, BUT SETTING OUT THE AGREED TERMS IN RECITALS - Recitals in such a court order may be enforced without the need to bring a fresh claim

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DIPOSING OF PROCEEDINGS

  • ENTRY OF JUDGMENT BY COURT
  • DISCONTINUANCE OF TH CLAIM
  • DISMISSAL OF THE CLAIM
  • STAYING THE CLAIM 
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METHODS OF FUNDING ADR

  • SELF FUNDED
  • INSURANCE COVER
  • CONDITIONAL FEE AGREEMENT
  • DAMAGES BASED AGREEMENT
  • THIRD PARTY FUNDING
  • LEGAL AID
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PRIVACY AND CONFIDENTIALITY

LEGAL PRIVILEGE

WITHOUT PREJUDICE

CONFIDENTIALITY CLAUSE  

CODES OF PRACTICE 

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CRITERIA FOR SELECTION OF ADR

COST

SPEED

CONTROL

OBJECTIVES

FUTURE RELATIONSHIPS

EXPERT VIEW

NEUTRAL ASSISTANCE

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WHEN ADR MAY NOT BE APPROPRIATE

A NEED FOR PRECEDENT

IMPORTANCE OF ORDER

NEED FOR AN INTERIM ORDER

IMPACT OF EVIDENCE RULES

STRENGTH OF CASE

COMPLEXITY OF CASE

ANIMOSITY

POWER IMBALANCE

QUASI CRIMINAL ALLEGATIONS

DAY IN COURT WANTED

ENFORCEMENT ISSUES

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MOTIVATIONS FOR ADR

LOWER COST

SPEED OF SETTLEMENT

CHOICE OF FORUM

CONTROL OF PROCESS

FLEXIBILITY OF PROCESS

CONFIDENTIALITY

WIDER ISSUES/OUTCOMES

SHARED FUTURE INTEREST

PROBLEM-SOLVING

RISK MANAGEMENT

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DECIDING ADR UNREASONABLENESS

NATURE OF DISPUTE

MERITS OF THE CASE

EXTENT OF OTHER SETTLEMENTS ATTEMPTED

DISPROPORTIONATE ADR COSTS

LATE ADR MAY PREJUDICE CASE 

REASONABLE PROSPECTS OF SUCCESS 

BAD CONDUCT

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ADJUDICATION

IS MORE FLEXIBLE THAN ARBITRATION

CAN BE MORE COST EFFECTIVE 

CAN BE BINDING ON AGREEMENT

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CONTEXT OF THE JACKSON REVIEW OF COSTS

THE EXTENSION OF CASE MANAGEMENT TO INCLUDE COST MANAGEMENT

INTRODUCTION OF COSTS BUDGETS 

MEDIATION HAS A VITAL ROLE TO PLAY IN REDUCING COSTS

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REGULATION OF ADR

NO SINGLE STATUTORY OR REGULATORY FRAMEWORK 

ARBITRATION = THE ARBITRATION ACT 1996

NO SINGLE FRAMEWORK FOR MEDIATION - THERE ARE STATUTORY AND REGULATORY FRAMEWORKS FOR SOME KINDS OF COMPLAINTS AND CONCILIATION PROCESSES

NO FORMAL REQUIREMENTS FOR TRAINING OF MEDIATORS - THE MEDIATION COUNCIL SETS DETAILED STANDARDS FOR THE TRAINING OF MEDIATORS INLINE WITH EU STANDARDS. 

NO SIGLE FRAMEWORK OVERSEEING ADJUDICATION, EXPERT DETERMINATION, EARLY NEUTRAL EVALUATION - EXPERTS IN CERTAIN FIELDS MAY BE SUBJECT TO INDUSTRY PROFESSIONAL CODES OF CONDUCT

AS ADR IS BY CONTRACTUAL AGREEMENT DISPUTES WILL BE OVERSEEN BY THE COURTS

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ADJUDICATIVE ADR

ADJUDICATIVE IS WHERE A THIRD PARTY MAKES A DECISION 

ARBITRATION

ADJUDICATION

EXPERT DETERMINATION

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NON ADJUDICATIVE ADR

OFFER AND ACCEPTANCE - CAN BE ACCEPTED ORALLY, BUT IS NORMALLY IN WRITING

NEGOTIATION - MOST COMMON FORM OF ADR 

 MEDIATION - THE THIRD PARTY FACILITATES BUT DOES NOT MAKE A DECISION.  PARTIES AGREE TO THE TERMS OF OF THE AGREEMENT IE ENFORCEABILITY. 

EARLY NEUTRAL EVALUATION - AN ASSESSMENT OF THE ISSUES 

MINI-TRIAL - TO DETERMINE SPECIFIC ISSUES.

CONCILIATION 

COMPLAINT OR GRIEVANCE PROCEDURES

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