Chapter 1 - Different Options for Dispute Resolution
Court may impose a costs sanction on a party if they unreasonably refuse to take part in ADR
Factors to determine whether the refusal is unreasonable
1. the nature of the dispute;
2. the merits of the case;
3. the extent to which other settlement methods have been attempted;
4. whether the costs of the ADR would be disproportionately high;
5. whether any delay in setting up and attending the ADR would have been prejudicial
6. whether the ADR had a reasonable prospect of success.
The burden is on the other party to show that the refusal is unreasonable with the court rejecting any presumption
in favour of mediation.
Directions questionnaire must be completed by both parties
● to ensure that clients are fully aware of the importance and implications of ADR, solicitors are required
to confirm they have explained to their client:
○ the need to try to settle
○ the options available; and
○ the possibility of costs sanctions if they refuse to attempt to settle
Clients should always consider ADR and engage in the process unless there are convincing reasons not
to do so → even then, they should be prepared to justify their decision before a sceptical judge if
necessary.
Mediation
● mediation should be proposed, usually by letter, to the opponent
● mediator will be sent written statements from both parties and, thereafter, will discuss the case with
them on a ‘without prejudice’ basis.
● Advantages
○ Lower costs
○ Quicker procedure
○ no legal requirements
○ takes place in private → protect reputation
○ Preserving a business relationship
○ Outcome can be arrangements that a court could not order
○ Both parties can withdraw at any time
● Disadvantages
○ no formal procedures for disclosure of documents and evidence
○ If the client requires public vindication → privacy
○ Cannot withdraw
● Enforcement = Enforceable through signed agreement
,Arbitration
● once a party has agreed to be subject to it, they cannot take advantage of the normal court processes
● Sometimes parties are contractually bound to use arbitration
● governed by statute if the agreement to arbitrate is in writing
● Parties can choose independent arbitrator
● Once agreement is reached → result is binding
● Enforcement = Once a decision has been reached, the winning party to an arbitration can apply to the
High Court for permission to enforce the arbitration award as if it were a court judgment
Litigation
● Civil litigation is governed by the Civil Procedure Rules 1998
● Aim = to provide a more ‘user-friendly’ system of resolving such disputes due to the increase in litigants
in person
● most civil disputes are dealt with either by the County Court or the High Court
● Court personnel
○ County Court and High Court work is dealt with by district judges
■ deal with the majority of interim applications
■ have jurisdiction to hear trials where the amount involved does not exceed £25,000
○ Court manager
○ Ushers
,5 stages of litigation
, Stage 1: pre-commencement of proceedings
● Question the client
● Gathering evidence → to confirm the viability of the claim and the prospects of success
● Addressing the costs to client
● Consider ADR
● Pre-action protocols
○ must establish what issues are in dispute, share information that is available to them
concerning these matters and endeavour to resolve the issues.
○ Failure to follow a protocol step or its spirit, without good reason, will usually incur a sanction
● After collecting sufficient evidence to substantiate a realistic claim, C should send to the proposed
defendant a letter detailing the claim → D will send a letter in response
Stage 2: commencement of the claim
● C send claim form and particulars of claim
● D send defence
● Court will allocate the matter to a track
Stage 3: interim matters
● Court give directions to the parties listing all the steps they must take to prepare for trial + need to follow
strict timetable
● Need to exchange evidence
● Need to scrutinise the cost
● Specific orders can be applied
Stage 4: trial
● Judge makes a decision + paying party’s costs
Stage 5: post-trial
● Appeal
● Enforcement of judgment
Court may impose a costs sanction on a party if they unreasonably refuse to take part in ADR
Factors to determine whether the refusal is unreasonable
1. the nature of the dispute;
2. the merits of the case;
3. the extent to which other settlement methods have been attempted;
4. whether the costs of the ADR would be disproportionately high;
5. whether any delay in setting up and attending the ADR would have been prejudicial
6. whether the ADR had a reasonable prospect of success.
The burden is on the other party to show that the refusal is unreasonable with the court rejecting any presumption
in favour of mediation.
Directions questionnaire must be completed by both parties
● to ensure that clients are fully aware of the importance and implications of ADR, solicitors are required
to confirm they have explained to their client:
○ the need to try to settle
○ the options available; and
○ the possibility of costs sanctions if they refuse to attempt to settle
Clients should always consider ADR and engage in the process unless there are convincing reasons not
to do so → even then, they should be prepared to justify their decision before a sceptical judge if
necessary.
Mediation
● mediation should be proposed, usually by letter, to the opponent
● mediator will be sent written statements from both parties and, thereafter, will discuss the case with
them on a ‘without prejudice’ basis.
● Advantages
○ Lower costs
○ Quicker procedure
○ no legal requirements
○ takes place in private → protect reputation
○ Preserving a business relationship
○ Outcome can be arrangements that a court could not order
○ Both parties can withdraw at any time
● Disadvantages
○ no formal procedures for disclosure of documents and evidence
○ If the client requires public vindication → privacy
○ Cannot withdraw
● Enforcement = Enforceable through signed agreement
,Arbitration
● once a party has agreed to be subject to it, they cannot take advantage of the normal court processes
● Sometimes parties are contractually bound to use arbitration
● governed by statute if the agreement to arbitrate is in writing
● Parties can choose independent arbitrator
● Once agreement is reached → result is binding
● Enforcement = Once a decision has been reached, the winning party to an arbitration can apply to the
High Court for permission to enforce the arbitration award as if it were a court judgment
Litigation
● Civil litigation is governed by the Civil Procedure Rules 1998
● Aim = to provide a more ‘user-friendly’ system of resolving such disputes due to the increase in litigants
in person
● most civil disputes are dealt with either by the County Court or the High Court
● Court personnel
○ County Court and High Court work is dealt with by district judges
■ deal with the majority of interim applications
■ have jurisdiction to hear trials where the amount involved does not exceed £25,000
○ Court manager
○ Ushers
,5 stages of litigation
, Stage 1: pre-commencement of proceedings
● Question the client
● Gathering evidence → to confirm the viability of the claim and the prospects of success
● Addressing the costs to client
● Consider ADR
● Pre-action protocols
○ must establish what issues are in dispute, share information that is available to them
concerning these matters and endeavour to resolve the issues.
○ Failure to follow a protocol step or its spirit, without good reason, will usually incur a sanction
● After collecting sufficient evidence to substantiate a realistic claim, C should send to the proposed
defendant a letter detailing the claim → D will send a letter in response
Stage 2: commencement of the claim
● C send claim form and particulars of claim
● D send defence
● Court will allocate the matter to a track
Stage 3: interim matters
● Court give directions to the parties listing all the steps they must take to prepare for trial + need to follow
strict timetable
● Need to exchange evidence
● Need to scrutinise the cost
● Specific orders can be applied
Stage 4: trial
● Judge makes a decision + paying party’s costs
Stage 5: post-trial
● Appeal
● Enforcement of judgment
