Alternative Dispute Resolution and Litigation Strategy
What the exam tests
Alternative Dispute Resolution and Litigation Strategy tests whether you can choose and sequence dispute resolution processes, enforce dispute resolution clauses and advise on settlement.
Core rules
- Arbitration is consensual and binding. A valid arbitration agreement generally requires the court to stay proceedings; the tribunal decides jurisdiction. Mediation is facilitated negotiation and is confidential; a settlement is a contract.
- Tiered clauses may require negotiation or mediation before arbitration or litigation. Non-compliance can be a breach or a bar, depending on drafting.
- ADR is not a delay tactic. Without prejudice settlement discussions are inadmissible on liability. A Tomlin order records a settlement and allows enforcement without entering judgment.
- Litigation strategy requires a cost-benefit analysis, a realistic assessment of recovery, enforcement prospects and reputational risk. Consider proportionality and the overriding objective.
Worked example
A supply contract requires the parties to attempt mediation before arbitration. The buyer sues in court without mediating. The seller applies for a stay under the arbitration clause, and the court also considers the mediation precondition. The safest advice is to comply with both steps before issuing, because non-compliance may lead to a stay or a costs sanction.
Traps
Issuing in the wrong forum; ignoring an arbitration clause; treating mediation as non-binding; settling without authority; failing to record a Tomlin order; using without prejudice correspondence as evidence of liability.