Table of Cases |
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xxv | |
Table of Statutes |
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xxxv | |
Glossary and Abbreviations |
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xxxix | |
Part 1 General Principles |
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1 General Principles of ADR |
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1 | (12) |
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C The Role of the Courts in the Use of ADR |
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D The Role of Judges in the Use of ADR |
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E The Context of the Jackson Review of Costs |
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F Key Recent Developments |
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J The International Context |
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2 The Range of ADR Options |
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13 | (15) |
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Other adjudicative options |
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B Non-Adjudicative Options |
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Early neutral/expert evaluation |
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Complaint or grievance procedures |
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C Motivations for the Use of ADR |
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A wider range of issues/outcomes may be considered |
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Shared future interests may be protected |
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Use of a problem-solving approach |
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D Criteria for the Selection of an ADR Option |
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How important is it to minimize costs? |
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How important is fast resolution? |
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How much control does the party want? |
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What are the main objectives of the party? |
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Is a future relationship important? |
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Is the view of an expert important to key issues? |
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Would neutral assistance be valuable? |
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E When ADR may not be Appropriate |
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The importance of a court order |
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The relevance of interim orders |
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Evidential rules are important |
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The complexity of the case |
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Quasi-criminal allegations |
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Enforcement may be an issue |
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3 Timing the Use of ADR in Relation to the Progress of a Case |
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28 | (11) |
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A The Importance of Timing |
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B Procedural Factors Relevant to Timing |
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The use of ADR at the pre-action stage |
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Case and costs management and directions |
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The use of ADR at an interim stage |
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The use of ADR before and during trial |
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The use of ADR in relation to appeals |
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The use of ADR in relation to assessment of costs |
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C Practical Factors Relevant to Timing |
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The position as regards costs |
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The timeframe for reaching resolution |
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The availability of information |
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The availability and importance of evidence |
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The importance of interim applications |
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Antagonism between the parties |
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4 Roles and Responsibilities of Lawyers and Parties in ADR |
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39 | (11) |
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B Duties Under the Civil Procedure Rules |
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C The Role of a Lawyer in Advising on ADR |
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E The Role of a Lawyer in Advising on Terms of Settlement |
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F The Role and Responsibilities of a Client in Relation to ADR |
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G Addressing Concerns About ADR |
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Appropriateness of the litigation process |
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Proposing ADR may indicate weakness |
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ADR might undermine litigation |
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ADR can undermine control of a case |
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ADR might provide pressure to settle |
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ADR may be used as a delaying tactic |
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Limited knowledge of ADR process may be a concern |
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ADR may incur extra expense |
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ADR may be abused where a claim lacks merit |
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H Persuading Another Party to Use ADR |
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Identify and address concerns |
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Propose specific benefits that ADR might offer |
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Offer information about ADR options |
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Propose a limited or simple ADR option |
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Offer to pay reasonable ADR fees |
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Engage the assistance of the judge |
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I Potential Liability of a Lawyer in Relation to ADR |
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5 Privacy, Privilege, and Confidentiality Clauses |
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50 | (13) |
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A Importance of Privacy and Confidentiality in ADR |
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B Control of Information in ADR |
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C Legal Professional Privilege and ADR |
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D The 'Without Prejudice' Principle |
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E Confidentiality Clauses |
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Experts, early neutral evaluation, or expert determination |
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F Potential Loss of Confidentiality |
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63 | (8) |
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A Professional Responsibilities in ADR |
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D Acting in the Client's Best Interests |
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E Acting within Instructions |
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F Duties in Relation to Client Confidentiality |
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G Duties in Relation to an Opponent |
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H Duties in Relation to a Funder |
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I Duties in Relation to a Court |
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J Lawyers who Provide ADR |
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71 | (13) |
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B The Potential for ADR to Save Costs |
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C The Potential Cost of an ADR Process |
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Early neutral evaluation, expert determination, and adjudication |
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D Funding Bases for an ADR Process |
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Third party or litigation funding |
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Conditional fee agreement (CFA) |
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Damages-based agreements (DBA) |
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E Costs Management and Proportionality |
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F Overall Financial Analysis and Risk |
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8 ADR Prior to the Issue of Proceedings |
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84 | (9) |
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A The Context where No Proceedings have been Issued |
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B Powers of the Court Prior to Issue of Proceedings |
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C Part 36 Offers Prior to Issue |
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D Settlements Reached with No Issue of Proceedings |
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F Practice Direction Pre-Action Conduct and Protocols Requirements |
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G Making Reasonable Attempts to Settle where no Proceedings have been Issued |
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Responding to a proposal to use ADR |
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H Potential Justifications for Non-Compliance |
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Part 2 Interplay Between ADR, CPR, And Litigation |
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9 The Approach of the Courts to ADR |
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93 | (12) |
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B Judicial Encouragement of ADR |
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C Can the Court Compel the Parties to Use ADR? |
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F The Overriding Objective and ADR |
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G Case Management Powers and ADR |
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H Directions Questionnaires and ADR |
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J Contractual ADR Clauses |
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K Costs Alternative Dispute Resolution |
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10 Costs and Cost Shifting in ADR |
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105 | (12) |
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A Liability to Pay for an ADR Process |
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B Recovery of Costs within an ADR Process |
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Advance agreement on costs |
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Subsequent agreement on costs |
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Award of costs in adjudicative ADR |
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C Recovery of ADR Costs within a Court Process |
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If a settlement is reached |
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A decision on costs alone |
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Qualified one-way cost shifting |
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11 Sanctions for Refusing to Engage in ADR Processes |
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117 | (22) |
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B The Court's General Powers to Make Costs Orders |
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C Failure to Comply with Pre-Action Protocols |
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D Unreasonable Refusal to Consider ADR |
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The nature of the dispute |
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Extent to which other settlement methods have been attempted |
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Whether the costs of ADR would be disproportionately high |
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Whether delay in setting up and attending ADR would be prejudicial |
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Whether ADR had a reasonable prospect of success |
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Whether an ADR order was made by the court |
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Obtaining further evidence or information before using ADR |
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The impact of Part 36 offers on a refusal to use ADR |
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Unreasonable refusal of other offers |
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F The Claimant's Failure to Initiate ADR Processes |
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G Failing to Make an Offer to Settle a Claim |
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H Delay in Consenting to ADR |
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J Rejecting ADR Before the Hearing of an Appeal |
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L Unreasonable Conduct in Mediation |
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M Indemnity Costs Orders for Failing to Consider ADR |
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N Silence in the Face of an Invitation to Use ADR |
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O What Practical Steps should be Taken by a Party to Avoid Sanctions? |
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P Privileged Material and Sanctions |
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Part 3 Negotiation |
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12 Negotiation and Joint Settlement Meetings |
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139 | (5) |
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A Negotiation as a form of ADR |
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B The Negotiation Process |
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Professional conduct and ethics |
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C Negotiation as a Context for Mediation |
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D Joint Settlement Meetings |
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Part 4 Mediation |
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13 Mediation: General Principles |
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144 | (25) |
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C Why does Mediation Work? |
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D Comparison Between Negotiation and Mediation |
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E Judicial Endorsement of Mediation |
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F Disputes Suitable for Mediation |
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G The Timing of Mediation |
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H Persuading a Reluctant Party to Consider Mediation? |
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I What can be Done by the Court to Make a Reluctant Party Consider Mediation? |
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K The Funding of Mediation Costs, Fees, and Expenses |
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Organizing the mediation process |
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M Ethical Conduct Required of the Mediator |
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Independence and neutrality |
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Termination of the mediation |
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N Accreditation and Regulation of Mediation |
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Training and accreditation requirements |
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O The Civil Mediation Council |
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P Confidentiality in Mediation |
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Information given to the mediator |
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Can the mediator enforce the confidentiality clause? |
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When will the court override the confidentiality provisions? |
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Other exceptions to confidentiality |
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Q The Without Prejudice Rule in Mediation |
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Communications that are not protected by the without prejudice rule in mediation |
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Can the mediator rely on the without prejudice rule? |
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R Legal Advice Privilege in Mediation |
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S The Mediator as Witness |
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T Can a Mediator be Sued? |
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14 Preparation for the Mediation |
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169 | (26) |
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Factors influencing the selection of a mediator |
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Expertise in the subject matter of the dispute |
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Expertise gained as a lawyer |
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Expertise gained as a professional in other fields |
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Preferred style of mediation |
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Practical experience as a mediator |
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Accreditation and professional indemnity insurance |
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Language and cultural considerations |
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D The Duration of Mediation |
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F The Agreement to Mediate |
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G Pre-Mediation Meeting/Contact |
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Representatives of the parties |
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Person with authority to settle |
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I The Position Statements |
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The aims in drafting the position statement |
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The content of the position statement |
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J The Key Supporting Documents |
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K Disclosure of Other Documents |
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M Further Information the Mediator may Require |
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P Specimen Settlement Clauses |
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195 | (19) |
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A When does the Mediation Start? |
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B The Stages in Mediation |
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The opening joint meeting (plenary session) |
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Extension of the plenary session |
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The separate private meetings (or closed meetings) |
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D The Exploration/Information Stage |
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Carrying out a 'reality test' |
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Probing the underlying issues |
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Helping the parties to devise options for settlement |
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E The Negotiating/Bargaining Stage |
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Joint meetings of the legal representatives of the parties |
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Joint meetings between the lay clients |
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Joint meetings of the experts |
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F The Settlement/Closing Stage |
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If no settlement is reached |
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G The Closing Joint Meeting |
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H The Mediator's Role Following the Conclusion of the Mediation |
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I Main Variations in the Process |
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Mediations conducted online |
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16 Court Mediation Schemes and Other Schemes |
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214 | (16) |
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C Current Court Mediation Schemes |
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Mayor's and City of London County Court Mediation Scheme |
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The HMCTS Small Claims Mediation Scheme |
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Court of Appeal Mediation Scheme |
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Court of Appeal mediation pilot scheme |
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D Civil Mediation Online Directory |
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E Judicial Mediation Schemes |
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Court settlement process in the Technology and Construction Court |
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Judicial mediation in Employment Tribunals |
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F Mediation in Specific Cases |
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Mediation in cases in the Commercial Court |
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Complex construction, engineering, and technology disputes |
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Mediation in employment disputes |
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G Mediating Multi-Party Disputes |
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H Other Mediation Processes |
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Mini-trial or executive tribunal |
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Consensus-building mediation |
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J Pro Bono Mediation and LawWorks |
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17 EU Directive on Mediation in Civil and Commercial Cases |
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230 | (8) |
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B The EU Mediation Directive |
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Objective of the Directive |
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Application of the Directive |
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Implementation of the Directive by the UK |
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Main provisions of the EU Directive |
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Ensuring the quality of mediation |
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Enforceability of agreements resulting from mediation |
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Effect of mediation on limitation and prescription periods |
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Application of the EU Directive to domestic mediations |
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Implementation of the EU Mediation Directive in other |
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C European Code of Conduct for Mediators |
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D Enforceability of International Mediation Settlement Agreements |
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Part 5 Recording And Enforcing Settlement |
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18 Recording Settlement-Private Agreement |
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238 | (7) |
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A Reaching a Clear Outcome |
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Funding arrangements and reasonable offers |
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B Forms of Recorded Outcome |
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Full and final settlement |
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C Records Made During the ADR Process |
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D Forms for Recording Settlement |
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E Drafting Terms of Settlement |
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19 Recording Settlement-Court Proceedings |
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245 | (7) |
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A Settlements in Existing Court Proceedings |
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B Methods of Recording Settlements in Court Proceedings |
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Judgment for immediate payment or by instalments |
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Endorsement of settlement on backsheets |
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True consent orders and submission to agreed terms |
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Advantages and disadvantages of Tomlin Orders |
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Restrictions on consent orders and judgments |
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C Dealing with the Proceedings |
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D Drafting of Consent Orders |
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F Administrative Consent Orders |
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G Informing the Court of Settlement |
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20 Enforcement of Settlements |
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252 | (5) |
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B Methods of Enforcing Compromise Agreements |
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C Discharge of Original Obligation by Compromise |
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D Enforcement of Compromise Contracts |
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Effect of endorsements on briefs |
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Enforcement by civil proceedings |
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Bankruptcy and winding-up |
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E Challenging Compromise Contracts |
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F Enforcement of Court Orders |
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Part 6 Other Alternative Dispute Resolution Options And The International Perspective |
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257 | (8) |
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B The Use of Portals for Claim Management and Settlement |
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C The Use of Online Resources to Support ADR Processes |
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D The Development of ODR Options |
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E International Developments |
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Principles for international ADR and ODR |
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European Union regulation |
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22 Early Neutral Evaluation |
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265 | (5) |
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B At what Stage should ENE be Employed? |
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C When should ENE be Used? |
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Judicial evaluation in the Commercial Court |
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Judicial evaluation in the Technology and Construction Court |
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Judicial evaluation in the Chancery Court |
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23 Conciliation, Complaints, Grievances, and Ombudsmen |
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270 | (8) |
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C Complaints and Grievance Procedures |
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Raising a complaint or grievance |
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Acting for a party in a complaint |
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Decisions in complaints and grievance investigations |
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Information following exhaustion of complaints procedures |
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Complaints handling by ombudsmen |
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Procedure on references to ombudsmen |
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Grounds on which ombudsmen make their decisions |
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Can a complainant bring court proceedings? |
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24 Expert (or Neutral) Determination |
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278 | (16) |
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A What is Expert Determination? |
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B Cases Suitable for Expert Determination |
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C Contractual Nature of Expert Determination |
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D Selection of the Expert |
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Implied duty to cooperate |
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F Confidential Information |
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H Reasons for the Decision |
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I Issues that can Arise in Expert Determination |
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J Ignoring an Expert Determination Clause |
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Applications to stay court proceedings pending expert determination |
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K The Extent of the Expert's Jurisdiction |
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L Grounds for Challenging the Decision |
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M Contractual Grounds for Challenge |
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Failure to act lawfully or fairly |
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The decision is not intended to be final on matters of construction |
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N Other Grounds on Which an Expert's Determination can be Challenged |
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Material departure from instructions |
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O Procedure for Making a Challenge |
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294 | (9) |
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B Fundamental Concepts in Arbitration |
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Contractual foundation of arbitration |
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Mandate of the arbitral tribunal |
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D Stay of Legal Proceedings |
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F Procedure in Arbitrations |
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Directions on procedure and evidence |
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Pre-trial hearing/conference |
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No right to an oral hearing |
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G Privacy and Confidentiality |
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26 Construction Industry Adjudication |
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303 | (4) |
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C Contractual Right to Adjudication |
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D Commencement of the Adjudication |
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Notice of adjudication: the commencement of adjudication |
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Nomination of adjudicator |
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Timetable for procedural steps |
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Response to referral notice |
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Subsequent statements of case |
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Index |
|
307 | |