A Practical Approach to Alternative Dispute Resolution
Höfundar: Susan Blake, Julie Browne, Stuart Sime
8.690 kr.
Lýsing:
A Practical Approach to Alternative Dispute Resolution provides a comprehensive and easily digestible commentary on all of the major areas of out-of-court dispute resolution. Designed to support teaching and learning on the Bar Professional Training Course, it will also be of interest to practitioners who are looking for a clear exposition of the range of ADR processes. Written by an authoritative and highly respected author team, this book contains a range of features designed to enhance the reader's understanding of the key points, including sample documentation, flow diagrams, tables, further resources, and examples drawn from a range of different types of practice.
Annað
- Höfundar: Susan Blake, Julie Browne, Stuart Sime
- Útgáfa:5
- Útgáfudagur: 2018-08-15
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- Format:ePub
- ISBN 13: 9780192555953
- Print ISBN: 9780198823094
- ISBN 10: 0192555952
Efnisyfirlit
- Cover
- Title
- Copyright
- Preface
- Acknowledgements
- Contents Summary
- Glossary and abbreviations
- Table of cases
- Table of statutes
- PART I HISTORY AND RANGE OF ADR METHODS
- 1 INTRODUCTION
- A BACKGROUND
- B WHAT IS ADR?
- C WHY IS THERE A NEED FOR ADR?
- D THE GROWTH OF ADR OPTIONS
- E COURT RECOGNITION OF ADR
- F ADR AND THE REVIEW OF CIVIL LITIGATION COSTS
- G RECENT DEVELOPMENTS
- H THE INTERNATIONAL CONTEXT
- I SOME ISSUES WITH REGARD TO ADR
- J POTENTIAL ADVANTAGES OF ADR
- Lower cost
- Speed of settlement
- Control of process
- Choice of forum
- A wider range of issues may be considered
- Wider range of potential outcomes
- Flexibility of process
- Flexibility with regard to evidence
- Confidentiality
- Use of a problem-solving approach
- Possible reduction of risk
- Client satisfaction
- K POTENTIAL DISADVANTAGES OF ADR
- Increased expense
- Additional delay
- Possible reduction in outcome compared to a court judgment
- Lack of a clear and public finding
- Loss of potential strategic use of procedural steps
- Loss of potential advantages of evidential rules
- Confusion of process
- L WEIGHING UP DISPUTE RESOLUTION OPTIONS
- M THE PSYCHOLOGY OF DISPUTE ESCALATION
- N ASSESSING THE SUCCESS OF ADR
- O OVERVIEW OF REGULATORY FRAMEWORKS
- P OVERVIEW OF TRAINING AND ACCREDITATION
- KEY POINTS SUMMARY
- 2 OVERVIEW OF ADR OPTIONS
- A KEY ELEMENTS OF ADR OPTIONS
- B THE ROLE OF THE LAWYER WITH REGARD TO ADR OPTIONS
- C NON-ADJUDICATIVE ADR OPTIONS
- Inter-client discussion
- Written offers
- Negotiation
- Mediation
- Conciliation
- Early neutral and/or expert evaluation
- D ADJUDICATIVE ADR OPTIONS
- Arbitration
- Adjudication
- Expert determination
- E OTHER OPTIONS
- Hybrids
- Processes for dealing with grievances
- Specialist systems
- IT-based options
- Dispute management systems
- Complex dispute resolution
- KEY POINTS SUMMARY
- 3 FACTORS INFLUENCING THE SELECTION OF AN ADR OPTION
- A LEGAL ADVICE ON APPROPRIATE DISPUTE RESOLUTION OPTIONS
- Overcoming possible problems in advising on ADR
- The professional duty to give advice
- When to give advice on ADR options
- B ADVANCE SELECTION OF AN ADR OPTION
- C FACTORS INFLUENCING ADR SELECTION
- Is jurisdiction an issue?
- Is ADR inappropriate?
- Is a court decision creating a precedent important?
- Is a court order necessary?
- What is the relative cost of possible options?
- How important is expert knowledge?
- Is confidentiality important?
- How much control does the client want?
- What are the main objectives of the client?
- Is a future relationship important?
- What is the relevance of the chances of success?
- Does the client want a ‘day in court’?
- Would neutral assistance be valuable?
- What stage has the case reached?
- How important might interim orders be?
- Might orders relating to evidence be needed?
- What is the attitude of the court?
- Might enforcement be an issue?
- D POTENTIAL CONCERNS ABOUT ADR
- ADR can undermine litigation
- Proposing ADR suggests a lack of faith in your case
- ADR can undermine a lawyer’s control of a case
- ADR does not really save costs
- ADR is a way of getting something for a weak case
- ADR involves too much pressure to settle
- ADR is used as a delaying tactic
- ADR is not a robust process
- E SECURING AGREEMENT TO ADR
- Suggest specific benefits that ADR might offer
- Offer information about ADR options
- Propose a simple ADR option
- Address any concerns that you think an opponent might have
- Offer to pay reasonable ADR fees
- Seek to persuade a judge to order a stay
- F CONFIDENTIALITY IN RELATION TO ADR PROCESSES
- G TIMING THE USE OF ADR
- KEY POINTS SUMMARY
- A LEGAL ADVICE ON APPROPRIATE DISPUTE RESOLUTION OPTIONS
- 4 FUNDING ADR PROCEDURES
- A THE FUNDING CONTEXT
- B GENERAL CONSIDERATIONS
- What are the main elements of expense in the case?
- How much is at stake in the case?
- How is the case being funded?
- The extent to which expense has already been incurred
- The chances of success
- The possibility that costs may be recovered or liability for costs may shift
- C ELEMENTS OF EXPENSE
- Solicitor fees
- Barrister fees
- Evidence and information
- Disbursements
- Process fees
- D WHAT ADR PROCESSES COST
- ADR provider’s fee
- Negotiation
- Mediation
- Arbitration
- Other forms of ADR
- E EFFECTS OF THE FUNDING BASIS
- Conditional fee agreement funding
- Damages-based agreement
- Insurance
- Third-party funding
- Legal Aid Agency funding
- F SHIFTING THE LIABILITY FOR COSTS—PART 36 OFFERS
- G CONSIDERATIONS FOR THE PARTIES
- H OVERALL FINANCIAL ANALYSIS AND RISK ASSESSMENT
- I BASIC EXAMPLE OF ADR FINANCIAL CONSIDERATIONS
- KEY POINTS SUMMARY
- 5 ONLINE ADR OPTIONS AND ODR
- A INTRODUCTION
- B BACKGROUND
- C THE MAIN BODIES CONCERNED WITH ODR
- D THE ROLE OF TECHNOLOGY IN ADR
- E THE ROLE OF TECHNOLOGY IN COURT PROCESSES
- F ODR SOFTWARE OPTIONS
- G DEVELOPMENT OF ADR AND ODR WITHIN THE EUROPEAN UNION
- H LOOKING FORWARD
- KEY POINTS SUMMARY
- 6 PROFESSIONAL ETHICS
- A INTRODUCTION
- B ADVISING ON ADR OPTIONS
- C LAWYERS PROVIDING AN ADR SERVICE
- D COMPLIANCE WITH CORE PROFESSIONAL DUTIES
- To act at all times in the client’s best interests
- To act within the client’s instructions
- To maintain client confidentiality
- To act competently
- To act with integrity
- To be independent
- Not to mislead anyone
- Not to bring the system of justice into disrepute
- Not to make threats
- E SPECIFIC DUTIES IN NEGOTIATION AND MEDIATION
- F THE DUTY OF CONFIDENTIALITY
- Introduction
- The extent of the duty
- Confidentiality in mediation
- Confidentiality in early neutral evaluation and expert determination
- Confidentiality in adjudicative processes such as arbitration and adjudication
- G LEGAL PROFESSIONAL PRIVILEGE
- H WITHOUT PREJUDICE COMMUNICATIONS
- Exceptions to the without prejudice communications rule
- I PRACTICAL CONSIDERATIONS
- J DISCLOSURE OF INFORMATION IN ADR PROCESSES
- Non-adjudicatory ADR and expert determination
- Adjudication and arbitration
- K AUTHORITY TO SETTLE
- L THE RELATIONSHIP BETWEEN BARRISTERS AND THEIR PROFESSIONAL CLIENTS IN ADR
- KEY POINTS SUMMARY
- 1 INTRODUCTION
- PART II THE INTERPLAY BETWEEN ADR, CPR, AND LITIGATION
- 7 THE APPROACH OF THE COURTS TO ADR
- A INTRODUCTION
- B PRE-ACTION PROTOCOLS
- Practice Direction—Pre-Action Conduct and Protocols
- The pre-action protocols
- The Pre-action Protocol for Possession Claims based on Mortgage or Home Purchase Plan Arrears in Respect of Residential Property
- The Pre-action Protocol for Construction and Engineering Disputes
- Family proceedings
- C THE COURT GUIDES
- The Admiralty and Commercial Courts Guide
- The Chancery Guide
- The Queen’s Bench Guide
- The Technology and Construction Court Guide
- The Circuit Commercial (Mercantile) Court Guide
- D THE OVERRIDING OBJECTIVE AND ADR
- E ACTIVE CASE MANAGEMENT AND ADR
- A more robust approach since 1 April
- Case management orders and ADR
- Part 36 offers to settle
- F COSTS MANAGEMENT AND ADR
- G DIRECTIONS QUESTIONNAIRES AND ADR
- H GRANTING STAYS FOR ADR
- I JUDICIAL ENCOURAGEMENT OF ADR
- J THE APPROACH OF THE COURTS TO CONTRACTUAL ADR CLAUSES
- K COSTS ALTERNATIVE DISPUTE RESOLUTION
- L CAN THE COURT COMPEL THE PARTIES TO USE ADR?
- KEY POINTS SUMMARY
- 8 THE SANCTIONS FOR REFUSING TO ENGAGE IN ADR PROCESSES
- A INTRODUCTION
- B THE COURT’S GENERAL POWERS TO MAKE COSTS ORDERS
- C ADVERSE COSTS ORDERS AGAINST A PARTY WHO FAILS TO COMPLY WITH THE PRE-ACTION PROTOCOLS
- D ADVERSE COSTS ORDERS AGAINST A PARTY WHO UNREASONABLY REFUSES TO CONSIDER ADR
- The nature of the dispute
- The merits of the case
- The extent to which other settlement methods have been attempted
- Whether the costs of ADR would be disproportionately high
- Whether any delay in setting up and attending ADR would be prejudicial
- Whether ADR had a reasonable prospect of success
- E OTHER FACTORS
- Whether an ADR order was made by the court
- Obtaining further information or evidence before using ADR
- Both parties at fault
- F REJECTING ADR AFTER JUDGMENT AND BEFORE THE HEARING OF AN APPEAL
- G DELAY IN CONSENTING TO ADR
- H BACKING OUT OF AN AGREED ADR PROCESS
- I UNREASONABLE CONDUCT IN THE MEDIATION
- J IMPOSING A COSTS CAP ON SOLICITOR–CLIENT COSTS FOR FAILING TO PURSUE ADR
- K INDEMNITY COSTS ORDERS FOR FAILING TO CONSIDER ADR
- L WHAT PRACTICAL STEPS SHOULD BE TAKEN BY A PARTY TO AVOID SANCTIONS?
- M HOW DOES THE COURT TREAT PRIVILEGED MATERIAL WHEN SEEKING TO IMPOSE SANCTIONS?
- KEY POINTS SUMMARY
- 9 RECOVERY OF ADR COSTS IN LITIGATION
- A INTRODUCTION
- B COSTS OF INTERIM APPLICATIONS RELATING TO ADR
- C RECOVERY OF THE COSTS OF UNSUCCESSFUL ADR PROCESSES
- Costs of failed ADR as part of the costs of litigation
- The agreement between the parties determines liability in respect of ADR costs
- The parties make no agreement about the costs of the ADR process
- Agreement between the parties for the costs of the ADR process to be costs in the case
- Settlement or determination on all issues apart from costs
- D RECOVERING THE COSTS OF AN ADR PROCESS AS DAMAGES
- KEY POINTS SUMMARY
- 7 THE APPROACH OF THE COURTS TO ADR
- 10 OVERVIEW OF NEGOTIATION AND MEDIATION
- 11 STYLES, STRATEGIES, AND TACTICS IN NEGOTIATION
- A THE IMPORTANCE OF STYLE, STRATEGY, AND TACTICS
- B STYLES
- Co-operative
- Competitive/confrontational
- Choice of style
- C STRATEGIES
- Co-operative
- Competitive or positional
- Collaborative—principled or problem solving
- Pragmatic
- Choice of strategy
- Interaction of strategies
- D TACTICS
- Tactics relating to information
- Tactics relating to offers and demands
- Tactics relating to structure
- Tactics relating to presentation
- Tactics relating to law
- KEY POINTS SUMMARY
- 12 PREPARING FOR NEGOTIATION
- A THE IMPORTANCE OF PREPARATION
- B IDENTIFYING THE OBJECTIVES
- C THE IMPORTANCE OF THE PROCEDURAL STAGE THE CASE HAS REACHED
- The case is at a very early stage
- The case is at a pre-action protocol stage
- After the issue of proceedings
- The case is being prepared for trial
- D IDENTIFYING THE ISSUES
- E THE RELEVANCE OF THE LEGAL CONTEXT
- F PREPARING TO DEAL WITH FACTS AND EVIDENCE
- The client’s view of the facts and evidence
- The opponent’s view of the facts and evidence
- Dealing with gaps and ambiguities
- Preparing to deal with facts and information in negotiation
- G PREPARING TO DEAL WITH FIGURES
- H IDENTIFYING PERSUASIVE ARGUMENTS
- Arguments based on the application of the law
- Arguments based on facts
- Merit-based or moral argument
- Practical or personal arguments
- Mixed arguments
- I PLANNING POTENTIAL DEMANDS, OFFERS, AND CONCESSIONS
- Plan what you will seek from the other side
- Plan how and when you will ask
- Plan what you might offer
- Plan how and when you might make offers
- J LINKING CONCESSIONS
- K IDENTIFYING THE BATNA
- L IDENTIFYING THE WATNA
- M CLARIFYING YOUR INSTRUCTIONS AND AUTHORITY
- KEY POINTS SUMMARY
- 13 THE NEGOTIATION PROCESS
- A WHEN, HOW, AND WHERE
- B WHO
- C COMMUNICATING EFFECTIVELY
- Reciprocal or ‘mirroring’ behaviour
- Effective presentation
- Responding effectively
- Questioning effectively
- Listening effectively
- D STRUCTURE AND AGENDA SETTING
- E OPENING
- Open by agreeing an agenda
- Open with a statement or a proposal
- Start by asking some key questions
- Invite your opponent to open
- Start with items that can be agreed easily
- Start with items where your case is strong
- Make limits on authority clear
- Refer to privilege for discussion
- Dealing with problems in opening
- F SEEKING INFORMATION
- G MAKING YOUR CASE ON THE ISSUES
- Presenting the merits of your case
- Addressing weaknesses in your case
- Bringing out weaknesses in your opponent’s case
- Proposing an outcome
- Additions to oral argument
- H PLANNING AND TIMING CONCESSIONS, OFFERS, AND DEMANDS
- Implementing concession plan
- Gaining concessions
- Making demands
- Making concessions
- Linking concessions
- Making offers
- Reaching a deal
- Bargaining tactics
- I MAKING PROGRESS
- J DEALING WITH DIFFICULTIES
- Gaps in information
- Getting bogged down, or reaching deadlock
- Dealing with a poorly prepared opponent
- Dealing with a very competitive opponent
- Frustration and emotion
- Concern about possible inexperience
- K REACHING A CLOSE-SETTLEMENT OR BREAKDOWN
- Making an oral contract
- Recording the outcome
- No agreement is reached
- KEY POINTS SUMMARY
- 14 MEDIATION: GENERAL PRINCIPLES
- A WHAT IS MEDIATION?
- B WHY IS MEDIATION AN EFFECTIVE ADR PROCESS?
- C JUDICIAL ENDORSEMENT OF MEDIATION
- D DISPUTES SUITABLE FOR MEDIATION
- E THE ADVANTAGES OF MEDIATION
- F DOES MEDIATION WORK?
- G WHY DO THE PARTIES USE MEDIATION?
- H WHAT CAN BE DONE TO MAKE A RELUCTANT PARTY ENGAGE IN MEDIATION?
- Mediation Information Assessment Meetings
- I THE TIMING OF MEDIATION
- Before litigation begins
- After litigation begins
- J THE COSTS OF MEDIATION
- The party’s own costs of preparing for the mediation
- The mediator’s fee
- Expenses of the mediation
- K THE FUNDING OF MEDIATION COSTS, FEES, AND EXPENSES
- Public funding
- Funding under a CFA
- L STYLES OF MEDIATION
- Facilitative mediation
- Evaluative mediation
- Transformative mediation
- M THE ROLE OF THE MEDIATOR
- Organizing the mediation process
- Acting as a facilitator
- Acting as intermediary
- Post-mediation role
- N ACCREDITATION AND REGULATION OF MEDIATION
- Introduction
- Training requirements
- O THE CIVIL MEDIATION COUNCIL
- The CMC Mediation Provider Registration Scheme
- The CMC Individual Registration Scheme
- Is further regulation required?
- P ETHICAL CONSIDERATIONS AFFECTING MEDIATORS
- Competence
- Independence and neutrality
- Impartiality
- The mediation procedure
- Fairness
- Confidentiality
- Termination of the mediation
- Repeat instructions
- Practice administration
- Q THE WITHOUT PREJUDICE RULE IN MEDIATION
- Communications that are not protected by the without prejudice rule in mediation
- Can the mediator rely on the without prejudice rule?
- R LEGAL ADVICE PRIVILEGE IN MEDIATION
- S CONFIDENTIALITY IN MEDIATION
- Example of a confidentiality clause
- Information given to the mediator
- Can the mediator enforce the confidentiality clause?
- When will the court override the confidentiality provisions in the interests of justice?
- Other exceptions to confidentiality
- T THE MEDIATOR AS WITNESS
- Should the law be reformed?
- U CAN A MEDIATOR BE SUED?
- Legal proceedings
- Disciplinary proceedings
- KEY POINTS SUMMARY
- 15 PREPARATION FOR THE MEDIATION
- A INTRODUCTION
- B SELECTING A MEDIATOR
- The qualities required in an effective mediator
- Factors influencing the selection of a mediator
- C THE DURATION OF MEDIATION
- D SELECTING A VENUE
- E THE AGREEMENT TO MEDIATE
- F PRE-MEDIATION MEETING/CONTACT
- G THE ATTENDEES
- Representatives of the parties
- Person with authority to settle
- Lawyers
- Insurers
- Interest groups
- Experts
- Witnesses of fact
- H THE POSITION STATEMENTS
- The aims in drafting the position statement
- The content of the position statement
- Joint position statement
- I THE KEY SUPPORTING DOCUMENTS
- Agreed bundle
- Confidential bundles
- J DISCLOSURE OF POSITION STATEMENTS AND DOCUMENTS
- K OTHER DOCUMENTS THAT THE PARTIES MAY WISH TO BRING TO THE MEDIATION
- L OTHER INFORMATION THAT THE MEDIATOR MAY SEEK FROM THE PARTIES BEFORE THE MEDIATION
- M RISK ASSESSMENT
- N OPTIONS FOR SETTLEMENT
- O SPECIMEN SETTLEMENT CLAUSES
- P CONCLUSION
- KEY POINTS SUMMARY
- 16 THE MEDIATION PROCESS
- A WHEN DOES THE MEDIATION START?
- B THE STAGES IN MEDIATION
- C THE OPENING STAGE
- Introductions
- The opening joint meeting (plenary session)
- Opening statements by the parties
- Witnesses and experts
- Closing the opening joint meeting
- Extension of the plenary session
- The separate private meetings (or closed meetings)
- D THE EXPLORATION/INFORMATION STAGE
- Carrying out a ‘reality test’
- Probing the underlying issues
- Devising options for settlement
- E THE NEGOTIATING/BARGAINING STAGE
- Acting as a shuttle-diplomat
- Devising strategies to help the parties work through deadlock
- F JOINT OPEN MEETINGS IN THE EXPLORATION OR BARGAINING STAGE
- Joint meetings of representatives of the parties
- Joint meetings between the lay clients
- Joint meetings of the experts
- G THE SETTLEMENT/CLOSING STAGE
- If settlement is reached
- If no settlement is reached
- H THE CLOSING JOINT MEETING
- I TERMINATION AND ADJOURNMENT OF THE MEDIATION
- J THE MEDIATOR’S ROLE FOLLOWING THE CONCLUSION OF THE MEDIATION
- K THE MAIN VARIATIONS IN THE PROCESS
- Evaluative mediation
- Evaluation of the merits of the case requested by both parties
- Evaluation of one or more issues requested by one party only
- Med-Arb
- Arb-Med
- Telephone mediations
- Mediations conducted online
- L THE ROLE OF THE ADVOCATE IN MEDIATION
- Preparation and case analysis
- Mediation advocacy
- Advisory skills in mediation
- Delivery of the opening statement at the opening joint meeting
- The advocate’s role during private closed meetings
- Settlement
- KEY POINTS SUMMARY
- 17 REACHING A SETTLEMENT
- A CONTRACTUAL PRINCIPLES
- B ORAL AGREEMENT AND EMAIL
- C THE RESPONSIBILITIES OF THE LAWYER
- D CHECKING COVERAGE AND DETAIL
- E RECORDING THE OUTCOME
- F BUILDING IN ENFORCEABILITY
- G IF NO AGREEMENT IS REACHED
- KEY POINTS SUMMARY
- 18 COURT MEDIATION SCHEMES AND OTHER SCHEMES
- A INTRODUCTION
- B HISTORIC SCHEMES
- The Central London County Court Voluntary Mediation Pilot Scheme
- The Central London County Court Compulsory Mediation Pilot Scheme
- The National Mediation Helpline
- C CURRENT COURT MEDIATION SCHEMES
- The Mayor’s and City of London County Court Mediation Scheme
- The HMCTS Small Claims Mediation Scheme
- The Court of Appeal Mediation Scheme
- The West Midlands Family Mediation Scheme
- County court local schemes
- D MEDIATION INFORMATION PILOT COURT SCHEMES
- The Birmingham, Manchester, and Central London County Courts Mediation Information Pilot Schemes
- The Court of Appeal Mediation Pilot Scheme
- The Central London County Court Pilot Scheme
- E THE CIVIL MEDIATION ONLINE DIRECTORY
- F FIXED PRICE MEDIATION SCHEMES
- G JUDICIAL MEDIATION SCHEMES
- The Court Settlement Process in the Technology and Construction Court
- Judicial mediation in family cases
- Judicial mediation in Employment Tribunals
- H MEDIATION IN SPECIFIC CASES
- Mediation in cases in the Commercial Court
- Complex construction, engineering, and technology disputes
- Family cases
- Workplace mediation
- Mediation in employment disputes
- Mediation in personal injury cases
- I MEDIATING MULTI-PARTY DISPUTES
- J OTHER SPECIALIST MEDIATION SCHEMES
- K OTHER MEDIATION PROCESSES
- Project mediation
- The mini-trial or executive tribunal
- Consensus-building mediation in environmental disputes or disputes that involve public policy issues
- Deal mediation
- L RESTORATIVE JUSTICE
- M COMMUNITY MEDIATION
- N PRO BONO MEDIATION AND LAWWORKS
- KEY POINTS SUMMARY
- 19 INTERNATIONAL MEDIATION
- A INTRODUCTION
- B THE ADVANTAGES OF MEDIATION IN INTERNATIONAL DISPUTES
- C PREPARATION FOR MEDIATION IN INTERNATIONAL DISPUTES
- D THE PROCESS IN INTERNATIONAL MEDIATION
- E THE GROWTH OF MEDIATION IN EUROPE
- F A MOVE TOWARDS HARMONIZING PRACTICES IN INTERNATIONAL MEDIATION
- G THE EU DIRECTIVE ON MEDIATION IN CIVIL AND COMMERCIAL CASES (DIRECTIVE 2008/52/EC)
- The objective of the Directive
- The application of the Directive
- Implementation of the Directive by the United Kingdom
- The main provisions of the Directive and the implementation of these provisions by the United Kingdom
- Application of the Directive to domestic mediations
- Implementation of the EU Mediation Directive in other member states
- H THE EUROPEAN CODE OF CONDUCT FOR MEDIATORS
- I ENFORCEABILITY OF INTERNATIONAL MEDIATION SETTLEMENT AGREEMENTS
- KEY POINTS SUMMARY
- 20 CONCILIATION
- A WHAT IS CONCILIATION?
- B AN OUTLINE OF THE PROCESS
- C ADVISORY, CONCILIATION AND ARBITRATION SERVICE
- Mandatory Early Conciliation
- Post-claim conciliation
- Collective conciliation
- D CONCILIATION IN FAMILY CASES
- The process
- E JUDICIAL CONCILIATION IN SMALL CLAIMS CASES
- F OTHER CONCILIATION SCHEMES
- The Disability Conciliation Service
- The Furniture Ombudsmen Conciliation Scheme
- KEY POINTS SUMMARY
- 21 COMPLAINTS, GRIEVANCES, AND OMBUDSMEN
- A INTRODUCTION
- B COMPLAINTS AND GRIEVANCE PROCEDURES
- Definitions
- Complaints handling
- Complaints against solicitors
- Employment grievances
- Acting for a party in a complaint
- Decisions in complaints and grievance investigations
- Effectiveness of complaints and grievance procedures
- Information following exhaustion of complaints procedures
- C OMBUDSMEN
- Complaints handling by ombudsmen
- Procedure on references to ombudsmen
- Grounds on which ombudsmen make their decisions
- Effect of ombudsman’s decision
- KEY POINTS SUMMARY
- 22 EARLY NEUTRAL EVALUATION
- A WHAT IS EARLY NEUTRAL EVALUATION?
- B AT WHAT STAGE SHOULD IT BE EMPLOYED?
- C WHEN SHOULD IT BE USED?
- D WHO SHOULD BE APPOINTED TO CARRY OUT THE EVALUATION?
- E THE PROCEDURE
- F NEUTRAL FACT FINDING
- G JUDICIAL EVALUATION
- Judicial evaluation in the Commercial Court
- Judicial evaluation in the Technology and Construction Court
- Judicial evaluation in the Chancery Division
- Judicial evaluation in the Employment Tribunal
- H EVALUATION IN PERSONAL INJURY CASES
- KEY POINTS SUMMARY
- 23 RECORDING SETTLEMENT
- A REACHING AGREEMENT
- B FORMS OF RECORDED OUTCOME
- Compromise agreements
- Full and final settlement
- Subject to contract
- C RECORDS MADE DURING THE ADR PROCESS
- D WHO SHOULD PRODUCE A FORMAL RECORD?
- E ENFORCEABLE FORMS FOR RECORDING SETTLEMENT
- An oral contract
- A written contract
- An award with statutory authority
- A court order
- Other legal documents
- F DRAFTING TERMS OF SETTLEMENT
- G METHODS OF RECORDING SETTLEMENT AGREEMENTS
- Exchange of letters
- Contract or deed
- Settlements where there are existing court proceedings
- Endorsement on briefs
- Interim order
- Consent order
- Tomlin order
- Relitigating after settlement
- H TERMS AS REGARDS COSTS
- I INFORMING THE COURT OF SETTLEMENT
- KEY POINTS SUMMARY
- 24 EXPERT OR NEUTRAL DETERMINATION
- A INTRODUCTION
- B WHEN SHOULD NEUTRAL OR EXPERT DETERMINATION BE USED?
- Stage at which the parties may agree to expert determination
- Cases where expert determination is particularly suitable
- C AGREEMENT TO USE EXPERT (OR NEUTRAL) DETERMINATION
- D THE GENERAL APPROACH OF THE COURTS TO EXPERT DETERMINATION
- Contractual effect of expert determination clauses
- Applications to stay court proceedings pending expert determination
- E ADVANTAGES OF EXPERT DETERMINATION
- F DIFFERENCES BETWEEN EXPERT DETERMINATION AND NEGOTIATION, MEDIATION, AND NEUTRAL EVALUATION
- G SIMILARITIES WITH OTHER FORMS OF ADR
- H SELECTION OF THE NEUTRAL OR EXPERT DETERMINER
- I THE PROCESS
- J CONFIDENTIAL INFORMATION
- K THE NATURE OF THE DECISION
- L REASONS FOR THE DECISION
- M THE COURT IS THE FINAL DECISION MAKER AS TO WHETHER THE EXPERT HAS JURISDICTION
- N OTHER GROUNDS FOR CHALLENGING A FINAL DECISION BY COURT PROCEEDINGS
- Material departure from instructions
- Fraud
- Collusion
- No reasons for decision
- Manifest error
- An error of law
- Failure to act lawfully or fairly
- The decision is not intended to be final on matters of construction
- O PROCEDURE FOR MAKING A CHALLENGE
- P ENFORCING A DECISION
- Q SUING THE EXPERT
- R HOW NEUTRAL OR EXPERT DETERMINATION DIFFERS FROM ARBITRATION
- S DISPUTES REVIEW PANELS
- KEY POINTS SUMMARY
- 25 CONSTRUCTION INDUSTRY ADJUDICATION
- A INTRODUCTION
- B NATURE OF ADJUDICATION
- C REQUIREMENTS
- Construction contract
- Dispute
- Requirement to include written terms for adjudication
- D EXPRESS CONTRACTUAL RIGHT TO ADJUDICATION
- E DEFAULT PROVISIONS IN THE SCHEME FOR CONSTRUCTION CONTRACTS
- F COMMENCEMENT OF THE ADJUDICATION
- Notice of adjudication: the commencement of adjudication
- Ambit of the reference
- Nomination of adjudicator
- Referral notice
- G PROCEDURE BEFORE THE HEARING
- Response to referral notice
- Subsequent statements of case
- Timetable for procedural steps
- Documents, questions, and impartiality
- Site visits
- Related disputes
- Confidentiality
- H ADJUDICATOR’S DECISION
- Inquisitorial approach
- Hearing
- The decision-making process
- Communicating decision to the parties
- Reasons, interest, and costs
- I BINDING, BUT INTERIM EFFECT, OF DECISIONS
- J IMMUNITY OF ADJUDICATOR
- K ADJUDICATION IN RESIDENTIAL BUILDING CONTRACTS
- L COURT ENFORCEMENT OF SUM FOUND DUE ON ADJUDICATION
- KEY POINTS SUMMARY
- 26 ARBITRATION
- A INTRODUCTION
- B ARBITRATION AND LITIGATION
- C FUNDAMENTAL CONCEPTS IN ARBITRATION
- D HISTORY OF ARBITRATION
- E INTERPRETATION OF THE ARBITRATION ACT
- F CONTRACTUAL FOUNDATION TO ARBITRATION
- Separability of arbitration clause
- Mandate of the arbitral tribunal
- G REQUIREMENTS
- Dispute or difference
- Arbitrable dispute
- Agreement to arbitrate
- The arbitration agreement
- Dispute must come within the arbitration agreement
- Capacity
- Conditions precedent to arbitration
- H OVERVIEW OF ARBITRATION PROCEDURE
- I GENERAL PRINCIPLES AND DUTIES
- J FAIR RESOLUTION OF DISPUTES
- Saving costs and expedition
- General duty of the tribunal
- Duty to follow the rules of natural justice
- Arbitration need not be adversarial
- K PARTY AUTONOMY
- Mandatory and non-mandatory provisions
- Sources of party agreement
- L COURT APPLICATIONS
- M DIFFERENT TYPES OF ARBITRATION
- Institutional arbitration
- Ad hoc arbitration
- Non-binding arbitration
- Statutory arbitration
- Consumer arbitration
- Med-arb
- Family arbitration
- N MULTI-TIERED DISPUTE RESOLUTION
- O ONE-STOP ADJUDICATION
- P EUROPEAN CONVENTION ON HUMAN RIGHTS AND ARBITRATION
- Q MAIN FEATURES OF ARBITRATION
- KEY POINTS SUMMARY
- 27 ARBITRAL TRIBUNALS
- A INTRODUCTION
- B COMMENCEMENT OF ARBITRATION
- Importance of the date of commencement of an arbitration
- Contractual time limits
- Limitation periods
- Date of commencement of arbitration
- Avoiding the consequences of failing to comply with a time limit
- C NOTICE OF ARBITRATION
- D APPOINTMENT OF ARBITRAL TRIBUNAL
- Number of arbitrators
- Appointing the arbitrators
- Chairperson
- Umpire
- Judges as arbitrators
- Failure of appointment procedure
- E CONTRACTUAL BASIS OF THE ARBITRATORS’ MANDATE
- Qualifications of arbitrators
- Impartiality and independence
- F TERMS OF REFERENCE
- G REMOVAL, RESIGNATION, AND VACANCIES
- Removal
- Resignation
- Death
- Vacancies
- H IMMUNITIES
- Immunity of arbitrators
- Immunity of arbitral institutions
- I LIABILITY FOR ARBITRATORS’ FEES
- KEY POINTS SUMMARY
- 28 THE COMMERCIAL ARBITRATION PROCESS
- A INTRODUCTION
- B DEFINITION OF ‘COMMERCIAL’
- C PRIVACY AND CONFIDENTIALITY
- Privacy
- Confidentiality
- D RANGE OF PROCEDURAL APPROACHES IN ARBITRATION
- E PROCEDURAL RULES GOVERNING THE ARBITRATION
- Bespoke arbitration clause
- Arbitral institution rules
- Silence in institutional rules
- F ROLE OF LEGAL REPRESENTATIVES IN ARBITRATION
- Advice on the arbitration clause
- Reference of a dispute to arbitration
- Defining the issues
- Putting together the case
- Hearings
- G COMMENCEMENT
- H ‘LOOK-SNIFF’ ARBITRATIONS
- I SHORT-FORM ARBITRATIONS
- J GENERAL PROCEDURE IN COMMERCIAL ARBITRATION
- Preliminary meeting
- Procedural orders
- Peremptory orders
- Dismissal for inordinate and inexcusable delay
- Statements of case
- Evidence
- Witness statements
- Experts
- Pre-trial hearing/conference
- No right to an oral hearing
- Bundles
- Arrangements for the hearing
- The hearing
- The decision
- Ex aequo et bono/amiable compositeur (equity clauses)
- The award and appeals
- K EXAMPLE OF ARBITRAL RULES THAT CLOSELY FOLLOW COURT PROCEDURES
- Commencement of arbitration
- Counter-notice
- Appointment of tribunal
- Procedure
- Statements of case
- Documents and samples
- Directions
- Hearings
- Awards
- Appeals
- KEY POINTS SUMMARY
- 29 INTERNATIONAL ARBITRATION
- A INTRODUCTION
- B MEANING OF ‘INTERNATIONAL’ IN ARBITRATION
- C ADVISING THE CLIENT
- D SEAT
- Designation of seat
- Supervisory jurisdiction
- Place of award
- E PROBLEMS CAUSED BY DIFFERENT SYSTEMS OF LAW
- F APPLICABLE LAW
- Proper law of the contract
- Law of the arbitration agreement
- Jurisdiction Regulation (Brussels Convention)
- Procedural law of the arbitration (curial law)
- Law of the place of enforcement
- Stateless arbitrations
- G OBJECTIONS TO JURISDICTION
- Procedures available for raising an objection to jurisdiction
- Substantive jurisdiction
- Time when an objection to jurisdiction should be taken
- Reserving client’s position
- Taking a step in the arbitration
- Kompetenz-Kompetenz
- Anti-suit injunctions
- H PROCEDURAL MATTERS RELEVANT TO INTERNATIONAL ARBITRATION
- Language of the arbitration
- Meetings and hearings
- Privilege
- Security for costs
- I ICC RULES OF ARBITRATION
- Request for arbitration
- Answer to the request
- ICC arbitral tribunals
- Seat of the arbitration
- Terms of reference
- Procedure prior to the hearing
- Hearings and the decision
- J UNCITRAL MODEL LAW ON INTERNATIONAL COMMERCIAL ARBITRATION
- Interpretation of the Model Law
- Commencement of Model Law arbitration
- Model Law arbitral tribunals
- Interim measures
- Statements of case under the Model Law
- Subsequent procedure
- Hearings
- KEY POINTS SUMMARY
- 30 ARBITRATION AWARDS AND ORDERS
- A INTRODUCTION
- B PROCEDURAL ORDERS
- C INTERIM AWARDS AND AWARDS ON DIFFERENT ISSUES
- D SETTLEMENT
- E MAIN AWARDS
- Majority decisions
- Reasons
- Seat of the arbitration
- Date of award
- Place where award is made
- Remedies
- Notification of award
- Binding effect
- F AWARD OF COSTS
- KEY POINTS SUMMARY
- 31 HIGH COURT JURISDICTION IN ARBITRATION CLAIMS
- A INTRODUCTION
- B ORDERS TO PREVENT PARTIES BREACHING AGREEMENTS TO ARBITRATE
- Stay of legal proceedings
- Taking a step in the proceedings
- Anti-suit injunctions
- C APPOINTMENT, REMOVAL, AND REPLACEMENT OF ARBITRATORS
- Extending time for beginning arbitral proceedings
- Setting aside appointment of sole arbitrator
- Failure of the appointment procedure
- Removal of arbitrators
- Relief from liability after resignation of an arbitrator
- D PROCEDURAL ORDERS TO ASSIST IN THE DETERMINATION OF ARBITRAL PROCEEDINGS
- Powers to secure evidence etc available to tribunals
- Court jurisdiction on procedural matters
- Disclosure in aid of arbitration
- Interim injunctions
- Applications for procedural orders
- Exclusion of section
- E JUDICIAL REVIEW OF ARBITRAL PROCEEDINGS
- F PRELIMINARY POINTS OF LAW
- Conditions to be satisfied
- Procedure on applications on preliminary points of law
- G SERIOUS IRREGULARITY
- Meaning of ‘serious irregularity’
- Substantial injustice
- Loss of right to object
- Powers available to deal with a serious irregularity
- H APPEAL ON A POINT OF LAW
- Question of law
- No contrary agreement
- No agreement to dispense with reasons
- Tribunal asked to determine the point
- Exhaustion of arbitral appeals and reviews
- Point must arise from an award
- Appeal must be made within 28 days
- Agreement or permission to appeal
- Permission of the court
- Powers available to deal with points of law
- I PROCEDURE IN ARBITRATION CLAIMS
- Application or Part 8 claim
- Time limit
- Defendants to the arbitration claim
- Courts having jurisdiction over arbitration claims
- Procedure on arbitration claims
- Hearings in arbitration claims under Part
- J APPEALS TO THE COURT OF APPEAL
- KEY POINTS SUMMARY
- 32 ENFORCEMENT OF SETTLEMENTS AND AWARDS
- A INTRODUCTION
- B BASIC METHODS OF ENFORCING COMPROMISE AGREEMENTS
- C MERGER OR DISCHARGE OF ORIGINAL OBLIGATION BY COMPROMISE
- Express term reviving old obligations in the event of non-performance
- Compromise based on performance of the agreed terms
- Compromise ineffective
- D MAKING A CHOICE ON ENFORCEMENT OPTIONS
- E ENFORCEMENT OF COMPROMISES RECORDED AS A CONTRACT
- Enforcement by civil proceedings
- Defences to claims for breach of compromise agreements
- Bankruptcy and winding up
- F CHALLENGING A SETTLEMENT RECORDED AS A CONTRACT
- G ENFORCEMENT OF COURT ORDERS
- H COSTS ONLY PROCEEDINGS
- I ENFORCEMENT OF CONSTRUCTION INDUSTRY ADJUDICATION DECISIONS
- J ARBITRATION SETTLEMENTS AND AWARDS
- Negotiated settlements in arbitration proceedings
- Enforcement of domestic arbitral awards
- Recognition and enforcement of New York Convention arbitration awards
- Grounds for refusing recognition or enforcement of a New York Convention award
- Enforcement of Geneva Convention awards
- KEY POINTS SUMMARY
UM RAFBÆKUR Á HEIMKAUP.IS
Bókahillan þín er þitt svæði og þar eru bækurnar þínar geymdar. Þú kemst í bókahilluna þína hvar og hvenær sem er í tölvu eða snjalltæki. Einfalt og þægilegt!Rafbók til eignar
Rafbók til eignar þarf að hlaða niður á þau tæki sem þú vilt nota innan eins árs frá því bókin er keypt.
Þú kemst í bækurnar hvar sem er
Þú getur nálgast allar raf(skóla)bækurnar þínar á einu augabragði, hvar og hvenær sem er í bókahillunni þinni. Engin taska, enginn kyndill og ekkert vesen (hvað þá yfirvigt).
Auðvelt að fletta og leita
Þú getur flakkað milli síðna og kafla eins og þér hentar best og farið beint í ákveðna kafla úr efnisyfirlitinu. Í leitinni finnur þú orð, kafla eða síður í einum smelli.
Glósur og yfirstrikanir
Þú getur auðkennt textabrot með mismunandi litum og skrifað glósur að vild í rafbókina. Þú getur jafnvel séð glósur og yfirstrikanir hjá bekkjarsystkinum og kennara ef þeir leyfa það. Allt á einum stað.
Hvað viltu sjá? / Þú ræður hvernig síðan lítur út
Þú lagar síðuna að þínum þörfum. Stækkaðu eða minnkaðu myndir og texta með multi-level zoom til að sjá síðuna eins og þér hentar best í þínu námi.
Fleiri góðir kostir
- Þú getur prentað síður úr bókinni (innan þeirra marka sem útgefandinn setur)
- Möguleiki á tengingu við annað stafrænt og gagnvirkt efni, svo sem myndbönd eða spurningar úr efninu
- Auðvelt að afrita og líma efni/texta fyrir t.d. heimaverkefni eða ritgerðir
- Styður tækni sem hjálpar nemendum með sjón- eða heyrnarskerðingu
- Gerð : 208
- Höfundur : 9486
- Útgáfuár : 2018
- Leyfi : 379
