ADR

Question 1

Mediators

Answer 1

• independent neutral third party;
• help the parties to reach a mutually acceptable solution that is NOT legally binding.

Question 2

How is mediation usually suggested to the other side?

Answer 2

by letter or email

Question 3

Mediation procedure

Answer 3

• Before the mediation, the mediator will be sent written statements from both parties and will discuss the case with them on a ‘without prejudice’ basis
• takes place in private w/ the mediator acting as a ‘go-between’

Question 4

Advantages of mediation

Answer 4

• Cheaper and faster, usually lasts 1 day
• short notice
• more flexible - no set procedure or legal requirements
• creative settlement options eg apologies
• private
• better for preserving relationships
• ability to withdraw
• the parties manage the proceedings

Question 5

Disadvantages of mediation

Answer 5

• not appropriate if court orders are needed eg ruling on law and/or injunctions
• limited disclosure so could be resolved without full transparency
• private so no opportunity to repair a damaged public reputation
• parties can withdraw and then pursue litigation
• if unsuccessful it will add time and costs to the dispute

Question 6

Enforcing the mediation agreement

Answer 6

Mediation agreements are NOT binding,
however, breaking the agreement = breach of contract, so they can sue.

Question 7

any party not engaging in ADR proposed by another party must serve a witness statement (‘without prejudice’) giving reasons within

Answer 7

21 days of the proposal

Question 8

When determining if a costs sanction should be imposed on a party who decides not to engage in ADR, the court will consider whether or not a party acted

Answer 8

reasonably in refusing to participate

Question 9

Factors from Halsey v Milton Keynes, which the courts consider when determining whether to order costs sanctions for a failure to engage in ADR

Answer 9

(a) the nature of the dispute;
(b) the merits of the case;
(c) the extent to which other settlement methods have been attempted;
(d) whether the costs of the ADR would be disproportionately high;
(e) whether setting up and attending ADR would have caused a prejudicial delay in a trial proceeding; and
(f) whether the ADR had a reasonable prospect of success.

Question 10

Arbitration

Answer 10

a process by which a dispute is resolved by an impartial adjudicator whose decision the parties to the dispute have agreed will be final and binding

Question 11

Can the court order the parties to engage in arbitration?

Answer 11

Yes!

Question 12

Advantages of arbitration

Answer 12

• privacy
• binding decision
• less formal than litigation
• marginally cheaper than litigation (but not always)
• easier enforcement in certain jurisdictions
• can choose a specialist to determine the dispute
• flexible so can be adapted to suit the needs of the parties and the dispute
• the parties manage the proceedings
• arbitrators with specific expertise can be appointed
• limited avenues to appeal so quite final

Question 13

Disadvantages of arbitration

Answer 13

• the dispute may not receive the depth of investigation it would receive in the courts; and
• certain remedies eg injunctions are not available
• adversarial, not the best method for preserving relationships
• can lead to long timeframes like litigation
• narrow scope to appeal if you are unhappy with the outcome

Question 14

How can you elect to arbitrate ahead of a dispute arising?

Answer 14

include an arbitration clause in the contract

Question 15

Med-arb

Answer 15

parties agree that they will initially try to resolve any dispute by mediation. If this does not result in satisfactory resolution of the matter, it will move on to an arbitration

Question 16

Expert determination (a form of ADR)

Answer 16

an independent expert on the subject matter is appointed by the parties to determine the dispute. The expert gives a binding decision.

Question 17

Expert appraisal/evaluation

Answer 17

independent expert party provides a non-binding assessment of the matter

Question 18

The court expects parties to explore ADR

Answer 18

The court expects the parties to act reasonably in relation to considering and engaging in ADR, and can impose sanctions if they do not.

Question 19

the earlier the ADR, the…

Answer 19

greater the cost saving in the event of success

Question 20

In the Directions Questionnaire (Fast / Intermediate / Multi-track), solicitors have to confirm that they have explained to clients the need to

Answer 20

try to settle, the settlement options and possible cost sanctions.

Question 21

silence in the face of an offer to engage in ADR is likely to be considered

Answer 21

unreasonable and to be sanctioned in costs

Question 22

Who can discontinue a claim at any time?

Answer 22

the claimant only

Question 23

Costs consequence of discontinuing a claim

Answer 23

The claimant is liable to pay the respondent’s costs up to the point of discontinuance, unless the court orders otherwise

Question 24

Parties to arbitration

Answer 24

claimant/respondent

Question 25

How is an arbitrator addressed?

Answer 25

Sir/Madam

Question 26

From when does discontinuance take effect?

Answer 26

from the date of service

Question 27

Arbitration awards can be enforced via

Answer 27

the High Court or the New York Convention

Question 28

Why would an arbitration clause be recommended in contracts between companies operating in different jurisdictions?

Answer 28

Typically, arbitration allows for easier international enforcement than litigation in the English courts (mainly because of New York Convention).

Question 29

How can a party enforce an arbitration agreement?

Answer 29

the successful party to an arbitration can apply to the High Court under s 66 of the Arbitration Act 1996 (as amended by the 2025 Act) for permission to enforce the arbitration award as if it were a court judgment.

Question 30

Court's powers in relation to ADR

Answer 30

The court can provide information about ADR and encourage the parties to consider ADR and compel a party to engage in ADR

Question 31

At a CMC, the court is likely to want to know what steps the parties have taken to

Answer 31

explore ADR

Question 32

Who has the burden of proof to show that a party should be penalised for costs because of failure to engage in ADR?

Answer 32

the unsuccessful party must show the court why it should depart from the general rule on costs to deprive the successful party of some or all of its costs on the grounds that it refused to agree to ADR.

Question 33

What should parties do after a consent order has been agreed?

Answer 33

The consent order must be filed at court - the court does not have to approve it, but typically will

Question 34

Upon receipt of an offer to engage in ADR, a party should:

Answer 34

Consider the merits of ADR, respond promptly in writing; if they do not wish to engage, they should set out other more agreeable circumstances; make the letter 'without prejudice save as to costs';

Question 35

Court powers to encourage ADR

Answer 35

The court can order a stay in order that the parties can explore ADR; The court can direct the parties to consider ADR and require an explanation of the parties' thinking in that regard.

Question 36

Outcome of arbitration

Answer 36

An arbitration award, which is binding on the parties

Question 37

How can you challenge an arbitrator's decision?

Answer 37

apply to High Court, usually within 28 days of the decision

Question 38

When may a defence of estoppel be relied on for consent orders?

Answer 38

if fresh proceedings are brought regarding matters in the agreement (prevents the same issue being re-litigated)

Question 39

What approach will the court take when determining whether to impose a costs sanction on a party that refused to partake in ADR?

Answer 39

The burden is on the party who was pro-ADR to show that the other party's refusal to participate in ADR was unreasonable.

Question 40

a court can lawfully stay proceedings for, or order, the parties to engage in ADR provided that does not

Answer 40

impair the claimant's right to proceed to a judicial hearing, and it is proportionate to achieving the legitimate aim of settling the dispute fairly, quickly and at reasonable cost.

Question 41

Exemplar arbitration clause

Answer 41

Any dispute arising out of or in connection with this contract, including any question regarding its existence, validity or termination, shall be referred to and resolved by arbitration under the XXX Rules. The number of arbitrators shall be [one/three]. The language of the arbitration will be English. The governing law of the contract shall be the substantive law of England and Wales.

Question 42

Statute governing arbitration

Answer 42

the Arbitration Act 1996 (as amended by the Arbitration Act 2025)

Question 43

Once litigation has commenced, can parties withdraw?

Answer 43

No, neither party can withdraw without paying the opponent’s costs

Question 44

Factors for ensuring the overriding objective is reached

Answer 44

(a) ensuring that the parties are on an equal footing; (b) saving expense; (c) dealing with the case in ways that are proportionate to: - the value of the claim; - the importance of the case; - the complexity of the issues; and - the financial position of each party; (d) ensuring that the case is dealt with expeditiously and fairly; (e) allotting to it an appropriate share of the court’s resources, whilst taking into account the need to allot resources to other cases; and (f) enforcing compliance with rules, practice directions and orders.

Question 45

Positive duty on the parties to further the overriding objective

Answer 45

the parties are required to help the court to further the overriding objective

Question 46

Aims of BATNA

Answer 46

Identify the other side's Best Alternative To a Negotiated Agreement and yours Identify the best possible outcome and “resistance point” (ie lowest you are willing to accept)

Question 47

an arbitration award can only, if at all, be appealed on the grounds that the arbitrator...

Answer 47

made a mistake on the law