Summary Civil Litigation UNIT 4 - Commencement of Proceedings
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BPC
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4 + 5. Adjudicative and Non-Adjudicative ADR
Includes:
- Adjudicative ADR
o Arbitration (CPR 62 + 25, ADR Handbook)
o Expert (or neutral) determination (24, ADR Handbook)
- Non-Adjudicative ADR
o Early neutral evaluation (22, ADR Handbook)
o Mediation (13, 14, 15, 16, ADR Handbook)
o Conciliation, Complains, Grievances, and Ombudsmen
Adjudicative ADR
In adjudicative ADR, an independent third-party will reach an impartial decision on a
dispute to which the parties will be bound.
Despite this, the process remains more flexible and private than litigation as the
parties have the choice of process, the person or body who will carry out the
process, and the material that the third party can access.
Adjudicative ADR can also be conducted on a private and confidential basis, unless
a dispute arises.
- May be subject to court oversight if contractually agreed process is not
followed/ whether decision reached by the third-party is tainted.
The primary forms of adjudicative ADR are as follows:
Arbitration
Adjudication
Expert Determination
Baseball Arbitration
Non-Adjudicative ADR
In non-adjudicative ADR, the parties retain control of both the process and outcome.
The process can be between the two parties, or facilitated by a third-party.
- If a third-party is used, in non-adjudicative ADR, the parties are not bound to
the solutions proposed by the third party.
The forms of non-adjudicative ADR are as follows:
Offer and Acceptance
Negotiation
Mediation
Early neutral expert evaluation
Mini-trial
Conciliation
Complaint or grievance procedures
Med-arb/arb-med
Adjudicative ADR (Continued)
, Arbitration (CPR 62 and 25, ADR Handbook))
What is Arbitration?
There is no legal definition of arbitration because it can take many forms but it tends
to involve an impartial arbitrator or tribunal, considering both sides of a
dispute and making a binding decision on the issues raised.
It is based on an agreement between parties to refer their disputes or difference to
arbitration. This agreement may be made before (in contract) or after the relevant
dispute has arisen.
Arbitrations are governed by the Arbitration Act 1996, and are subject to three
general principles:
S1 :
(a) The object of arbitration is to obtain the fair resolution of disputes by an impartial
tribunal without unnecessary delay or expense;
(b) The parties should be free to agree how their disputes are resolved, subject only to
the safeguards that are necessary in the public interest; and
(c) The court should not intervene except as provided by the Arbitration Act 1996.
Where the parties have agreed to refer their dispute to arbitration, it implies they
want their dispute dealt with:
By a tribunal they have chosen;
In a neutral location;
With neutral arbitrators;
In privacy;
Speedily and officially;
With light efficiency provision by the courts.
25.01 Arbitration can only be used for private law issues, most commonly for
resolving disputes arising out of contract between parties.
Where a dispute is referred to arbitration, they will often be four contracts:
Substantive contract, on which the dispute is based;
The agreement to arbitrate, which is separable from the substantive
contract;
The agreement between the parties and an arbitral institution, referring
the dispute to arbitration; and
The agreement appointing the arbitrators, made between the parties and
the arbitral institutions and individual arbitrators.
The jurisdiction of an arbitral tribunal depends on the mandate given to it by the
parties. Tribunal will not have jurisdiction on a matter, unless the dispute comes in
the terms of the arbitration agreement.
, Stay of Legal Proceedings
25.08 To prevent a party from breaching an agreement to arbitrate by bringing court
proceedings, s9(1) Arbitration Act 1996 allows the other side to apply for a stay in
those court proceedings.
Procedure
1. Arbitration is commenced by sending a notice of arbitration and then appointing the
members of the tribunal.
- Notice of arbitration has to be in writing and must comply with the CPR 62.4
requirements for appointing the tribunal.
In cases of a three-member tribunal, the usual position is that each party appoint one
arbitrator, and these two arbitrators than appoint a third member who acts as chairman.
- Before being appointed, each arbitrator is under a duty to disclose
conflicts of interest.
2. After this, the exact procedure adopted in arbitration will depend on what the parties have
agreed, which will be influenced by the nature and importance of the dispute.
3. A preliminary meeting will often be convened shortly after the tribunal is appointed. This
is an opportunity for the party is an arbitrator to meet, but its main purpose is for the tribunal
to discuss jurisdictional matters and to make directions for the preparation of evidence.
- The tribunal may fix the time with which any directions are to be complied with.
- Court assistance may be sought to secure the attendance of witnesses and
taking their evidence.
4. If the arbitration is of some complexity, it may also be sensible to hold a pre-trial hearing
or conference a few weeks before the expected start. The main purpose of this is the
review what has been done so far and to assess whether the parties are going to be ready.
5. Directions are usually made for the compilation of bundles.
- The first bundle containing statements of case and arbitration agreements.
- A second bundle is often created for evidence, divided into contemporaneous
documentation, witness statements, and expert evidence.
- A further file may be needed to contain written opening submissions or skeleton
arguments and authorities.
6. During the hearing, arbitrators can choose to adopt either an adversarial or inquisitorial
approach to the hearing.
Unless there is an agreement between the parties, the tribunal can decide whether and to
what extent there should be oral or written evidence or submissions.
7. Arbitrators will include a mechanism for closing the proceedings, either a date or a set
period after a stage and proceedings.
Awards
25.22 There are four types of award and orders available to arbitrators:
Procedural orders;
- An order during proceedings to preserve evidence.
Partial awards;
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