Alternative Dispute Resolution and Case Management
Foundations
ADR and case management aim to resolve disputes efficiently and proportionately. The candidate must understand arbitration, mediation, conciliation, negotiation, and the court's role in referring parties to ADR and managing the timetable of a suit.
Concepts to master
- Arbitration agreement: a written agreement to refer disputes to arbitration; courts generally refer parties to arbitration where a valid agreement exists, subject to limited exceptions.
- Mediation and conciliation: facilitated negotiation; the mediator does not decide, whereas an arbitrator does.
- Settlement: a mediated settlement may be recorded and enforced as a decree.
- Case management: framing of issues, discovery, scheduling, and limiting adjournments to ensure proportionate resolution.
- Confidentiality and without prejudice communications protect settlement negotiations.
Traps in questions
- Treating a mediator as having power to impose a binding award.
- Ignoring the requirement that an arbitration agreement be in writing.
- Assuming a court can refuse reference to arbitration merely because the claim is complex.
- Overlooking that settlement terms must be recorded to be enforceable.
Rule of thumb
Arbitrator decides; mediator facilitates; conciliator assists. If the parties want a binding determination, choose arbitration; if they want to preserve the relationship, choose mediation.
Worked example
Parties agree in writing to arbitrate future disputes. One sues in court. The defendant applies for reference to arbitration. Because a valid written agreement exists, the court should generally refer the dispute, leaving the arbitrator to decide the merits.