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Jackson ADR Handbook 2nd Revised edition [Minkštas viršelis]

(Barrister and Associate Dean at City Law School, City University London, City University London), , (Barrister and Deputy Course Director of the Bar Professional Training Course at City Law School, City University London, City University)
  • Formatas: Paperback / softback, 368 pages, aukštis x plotis x storis: 221x153x21 mm, weight: 518 g
  • Išleidimo metai: 08-Sep-2016
  • Leidėjas: Oxford University Press
  • ISBN-10: 0198783191
  • ISBN-13: 9780198783190
  • Formatas: Paperback / softback, 368 pages, aukštis x plotis x storis: 221x153x21 mm, weight: 518 g
  • Išleidimo metai: 08-Sep-2016
  • Leidėjas: Oxford University Press
  • ISBN-10: 0198783191
  • ISBN-13: 9780198783190
The Jackson ADR Handbook was created following recommendations by Lord Justice Jackson that an authoritative handbook for Alternative Dispute Resolution (ADR) should be prepared. The first edition laid a strong foundation as an essential guide to ADR and received judicial endorsement in the Court of Appeal and the Technology and Construction Court. With the benefit of a few years hindsight on the implementation of the Jackson reforms, this new edition builds on the success of the first edition to provide an updated guide to all aspects of ADR. With a strong focus on practical guidance, this second edition maintains the concise and user-friendly format of the first.

It includes an in-depth overview of the different options and principles of ADR, as well as sections on: the interplay between ADR, CPR, and litigation; negotiation; mediation; recording and enforcing settlement; and other alternative dispute resolution options, as well as giving a summary of the international perspective. Additional materials such as mediation providers, specimen documents, precedents, and practice tips are available on a companion website.

Recenzijos

A first-class and fundamental practitioner publication ... Now, with the benefit of a few years' hindsight on the implementation of 'the Jackson reforms' which are rightly seen as wholly constructive procedural necessities, this new edition 'builds on the success of the first edition to provide an updated guide to all aspects of ADR'. * Phillip Taylor and Elizabeth Taylor, Richmond Green Chambers. *

Table of Cases xxv
Table of Statutes xxxv
Glossary and Abbreviations xxxix
Part 1 General Principles
1 General Principles of ADR
1(12)
A The Importance of ADR
B The Definition of ADR
C The Role of the Courts in the Use of ADR
D The Role of Judges in the Use of ADR
E The Context of the Jackson Review of Costs
F Key Recent Developments
G The Success of ADR
H Compulsion to Use ADR
I Regulation of ADR
J The International Context
2 The Range of ADR Options
13(15)
A Adjudicative Options
Arbitration
Adjudication
Expert determination
Other adjudicative options
B Non-Adjudicative Options
Offer and acceptance
Negotiation
Mediation
Early neutral/expert evaluation
Mini trial
Conciliation
Complaint or grievance procedures
Other options
C Motivations for the Use of ADR
Lower costs
Speed of settlement
Choice of forum
Control of process
Flexibility of process
Confidentiality
A wider range of issues/outcomes may be considered
Shared future interests may be protected
Use of a problem-solving approach
Risk management
D Criteria for the Selection of an ADR Option
How important is it to minimize costs?
How important is fast resolution?
How much control does the party want?
What are the main objectives of the party?
Is a future relationship important?
Is the view of an expert important to key issues?
Would neutral assistance be valuable?
E When ADR may not be Appropriate
The need for a precedent
The importance of a court order
The relevance of interim orders
Evidential rules are important
The strength of a case
The complexity of the case
High levels of animosity
Power imbalance
Quasi-criminal allegations
Having a day in court
Enforcement may be an issue
3 Timing the Use of ADR in Relation to the Progress of a Case
28(11)
A The Importance of Timing
B Procedural Factors Relevant to Timing
Pre-selection of ADR
The use of ADR at the pre-action stage
On issue of proceedings
Case and costs management and directions
The use of ADR at an interim stage
The use of ADR before and during trial
The use of ADR in relation to appeals
The use of ADR in relation to assessment of costs
C Practical Factors Relevant to Timing
The overriding objective
The position as regards costs
The timeframe for reaching resolution
The issues in the case
The availability of information
The availability and importance of evidence
The importance of interim applications
The strength of a case
Antagonism between the parties
Specific types of case
4 Roles and Responsibilities of Lawyers and Parties in ADR
39(11)
A Overview
B Duties Under the Civil Procedure Rules
C The Role of a Lawyer in Advising on ADR
D Authority to Settle
E The Role of a Lawyer in Advising on Terms of Settlement
F The Role and Responsibilities of a Client in Relation to ADR
G Addressing Concerns About ADR
Appropriateness of the litigation process
Robustness of process
Proposing ADR may indicate weakness
ADR might undermine litigation
ADR can undermine control of a case
ADR might provide pressure to settle
ADR may be used as a delaying tactic
Limited knowledge of ADR process may be a concern
ADR may incur extra expense
ADR may be abused where a claim lacks merit
H Persuading Another Party to Use ADR
Identify and address concerns
Propose specific benefits that ADR might offer
Offer information about ADR options
Propose a limited or simple ADR option
Offer carrots
Offer to pay reasonable ADR fees
Engage the assistance of the judge
I Potential Liability of a Lawyer in Relation to ADR
Complaints
Wasted costs
Professional negligence
5 Privacy, Privilege, and Confidentiality Clauses
50(13)
A Importance of Privacy and Confidentiality in ADR
B Control of Information in ADR
C Legal Professional Privilege and ADR
D The 'Without Prejudice' Principle
E Confidentiality Clauses
Negotiation
Mediation
Experts, early neutral evaluation, or expert determination
Arbitration
F Potential Loss of Confidentiality
6 Ethics
63(8)
A Professional Responsibilities in ADR
B Solicitors
C Barristers
D Acting in the Client's Best Interests
E Acting within Instructions
F Duties in Relation to Client Confidentiality
G Duties in Relation to an Opponent
H Duties in Relation to a Funder
I Duties in Relation to a Court
J Lawyers who Provide ADR
7 Funding ADR Procedures
71(13)
A Expense and Funding
B The Potential for ADR to Save Costs
C The Potential Cost of an ADR Process
Negotiation
Mediation
Arbitration
Early neutral evaluation, expert determination, and adjudication
D Funding Bases for an ADR Process
Self-funding
Insurance
Third party or litigation funding
Conditional fee agreement (CFA)
Damages-based agreements (DBA)
Legal Aid Agency funding
Other options
E Costs Management and Proportionality
Costs management
Proportionality
F Overall Financial Analysis and Risk
8 ADR Prior to the Issue of Proceedings
84(9)
A The Context where No Proceedings have been Issued
B Powers of the Court Prior to Issue of Proceedings
C Part 36 Offers Prior to Issue
D Settlements Reached with No Issue of Proceedings
E Pre-Action Costs
F Practice Direction Pre-Action Conduct and Protocols Requirements
G Making Reasonable Attempts to Settle where no Proceedings have been Issued
Proposing ADR
Responding to a proposal to use ADR
H Potential Justifications for Non-Compliance
Part 2 Interplay Between ADR, CPR, And Litigation
9 The Approach of the Courts to ADR
93(12)
A Introduction
B Judicial Encouragement of ADR
C Can the Court Compel the Parties to Use ADR?
D The Court Guides
E Pre-Action Protocols
F The Overriding Objective and ADR
G Case Management Powers and ADR
H Directions Questionnaires and ADR
I Granting Stays for ADR
J Contractual ADR Clauses
K Costs Alternative Dispute Resolution
10 Costs and Cost Shifting in ADR
105(12)
A Liability to Pay for an ADR Process
B Recovery of Costs within an ADR Process
Advance agreement on costs
Subsequent agreement on costs
Award of costs in adjudicative ADR
C Recovery of ADR Costs within a Court Process
General principles
If a settlement is reached
A decision on costs alone
At an interim stage
As part of damages
At trial
The amount of costs
D Part 36 Offers
Qualified one-way cost shifting
11 Sanctions for Refusing to Engage in ADR Processes
117(22)
A Introduction
B The Court's General Powers to Make Costs Orders
C Failure to Comply with Pre-Action Protocols
D Unreasonable Refusal to Consider ADR
The nature of the dispute
The merits of the case
Extent to which other settlement methods have been attempted
Whether the costs of ADR would be disproportionately high
Whether 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 evidence or information before using ADR
The impact of Part 36 offers on a refusal to use ADR
Unreasonable refusal of other offers
F The Claimant's Failure to Initiate ADR Processes
G Failing to Make an Offer to Settle a Claim
H Delay in Consenting to ADR
I Both Parties at Fault
J Rejecting ADR Before the Hearing of an Appeal
K Backing out of ADR
L Unreasonable Conduct in Mediation
M Indemnity Costs Orders for Failing to Consider ADR
N Silence in the Face of an Invitation to Use ADR
O What Practical Steps should be Taken by a Party to Avoid Sanctions?
P Privileged Material and Sanctions
Part 3 Negotiation
12 Negotiation and Joint Settlement Meetings
139(5)
A Negotiation as a form of ADR
B The Negotiation Process
Professional conduct and ethics
Procedure and evidence
C Negotiation as a Context for Mediation
D Joint Settlement Meetings
Part 4 Mediation
13 Mediation: General Principles
144(25)
A What is Mediation?
B Does Mediation Work?
C Why does Mediation Work?
D Comparison Between Negotiation and Mediation
E Judicial Endorsement of Mediation
F Disputes Suitable for Mediation
G The Timing of Mediation
H Persuading a Reluctant Party to Consider Mediation?
I What can be Done by the Court to Make a Reluctant Party Consider Mediation?
J The Costs of Mediation
K The Funding of Mediation Costs, Fees, and Expenses
L The Mediator's Role
Organizing the mediation process
Before the mediation
At the mediation
Acting as a facilitator
Acting as intermediary
Post-mediation role
M Ethical Conduct Required of the Mediator
Competence
Independence and neutrality
Impartiality
The mediation procedure
Fairness
Confidentiality
Termination of the mediation
Practice administration
N Accreditation and Regulation of Mediation
Training and accreditation requirements
O The Civil Mediation Council
P Confidentiality in Mediation
Information given to the mediator
Can the mediator enforce the confidentiality clause?
When will the court override the confidentiality provisions?
Other exceptions to confidentiality
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 The Mediator as Witness
T Can a Mediator be Sued?
Legal proceedings
Disciplinary proceedings
14 Preparation for the Mediation
169(26)
A Introduction
B Styles of Mediation
Facilitative mediation
Evaluative mediation
Transformative mediation
C Selecting a Mediator
Factors influencing the selection of a mediator
Personal recommendation
Personality
Expertise in the subject matter of the dispute
Expertise gained as a lawyer
Expertise gained as a professional in other fields
Preferred style of mediation
Practical experience as a mediator
Accreditation and professional indemnity insurance
Interview
Language and cultural considerations
A team of mediators
D The Duration of Mediation
E Selecting a Venue
F The Agreement to Mediate
G Pre-Mediation Meeting/Contact
H The Attendees
Representatives of the parties
Person with authority to settle
Lawyers
Insurers
Interest groups
Experts
Witnesses of fact
I The Position Statements
The aims in drafting the position statement
The content of the position statement
Joint position statement
J The Key Supporting Documents
Agreed bundle
Confidential bundles
K Disclosure of Other Documents
L Complete Case Papers
M Further Information the Mediator may Require
N Risk Assessment
O Options for Settlement
P Specimen Settlement Clauses
Q Conclusion
15 The Mediation Process
195(19)
A When does the Mediation Start?
B The Stages in Mediation
C The Opening Stage
The opening joint meeting (plenary session)
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
Helping the parties to devise options for settlement
E The Negotiating/Bargaining Stage
Joint meetings of the legal representatives of the parties
Joint meetings between the lay clients
Joint meetings of the experts
F The Settlement/Closing Stage
If settlement is readied
If no settlement is reached
G The Closing Joint Meeting
H The Mediator's Role Following the Conclusion of the Mediation
I Main Variations in the Process
Evaluative mediation
J Med-Arb
K Arb-Med
Telephone mediations
Mediations conducted online
L Mediation Advocacy
16 Court Mediation Schemes and Other Schemes
214(16)
A Introduction
B Historic Schemes
C Current Court Mediation Schemes
Mayor's and City of London County Court Mediation Scheme
The HMCTS Small Claims Mediation Scheme
Court of Appeal Mediation Scheme
Court of Appeal mediation pilot scheme
D Civil Mediation Online Directory
E Judicial Mediation Schemes
Court settlement process in the Technology and Construction Court
Judicial mediation in Employment Tribunals
F 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
G Mediating Multi-Party Disputes
H Other Mediation Processes
Project mediation
Mini-trial or executive tribunal
Consensus-building mediation
Deal mediation
I Community Mediation
J Pro Bono Mediation and LawWorks
17 EU Directive on Mediation in Civil and Commercial Cases
230(8)
A Introduction
B The EU Mediation Directive
Objective of the Directive
Application of the Directive
Implementation of the Directive by the UK
Main provisions of the EU Directive
Ensuring the quality of mediation
Recourse to mediation
Enforceability of agreements resulting from mediation
Confidentiality
Effect of mediation on limitation and prescription periods
Publicity
Application of the EU Directive to domestic mediations
Implementation of the EU Mediation Directive in other
Member States
C European Code of Conduct for Mediators
D Enforceability of International Mediation Settlement Agreements
Part 5 Recording And Enforcing Settlement
18 Recording Settlement-Private Agreement
238(7)
A Reaching a Clear Outcome
Funding arrangements and reasonable offers
B Forms of Recorded Outcome
Compromise agreements
Full and final settlement
C Records Made During the ADR Process
D Forms for Recording Settlement
Oral contract
Exchange of letters
Formal written contract
Other legal documents
E Drafting Terms of Settlement
19 Recording Settlement-Court Proceedings
245(7)
A Settlements in Existing Court Proceedings
B Methods of Recording Settlements in Court Proceedings
Judgment for immediate payment or by instalments
Endorsement of settlement on backsheets
Interim consent order
True consent orders and submission to agreed terms
Tomlin Order
Advantages and disadvantages of Tomlin Orders
Restrictions on consent orders and judgments
C Dealing with the Proceedings
D Drafting of Consent Orders
E Terms as to Costs
F Administrative Consent Orders
G Informing the Court of Settlement
20 Enforcement of Settlements
252(5)
A Introduction
B Methods of Enforcing Compromise Agreements
C Discharge of Original Obligation by Compromise
D Enforcement of Compromise Contracts
Effect of endorsements on briefs
Enforcement by civil proceedings
Bankruptcy and winding-up
E Challenging Compromise Contracts
F Enforcement of Court Orders
Part 6 Other Alternative Dispute Resolution Options And The International Perspective
21 Online ADR and ODR
257(8)
A Overview
B The Use of Portals for Claim Management and Settlement
C The Use of Online Resources to Support ADR Processes
D The Development of ODR Options
E International Developments
Principles for international ADR and ODR
European Union regulation
22 Early Neutral Evaluation
265(5)
A Introduction
B At what Stage should ENE be Employed?
C When should ENE be Used?
D Choice of Evaluator
E 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 Court
23 Conciliation, Complaints, Grievances, and Ombudsmen
270(8)
A Introduction
Definitions
B Conciliation
Employment conciliation
C Complaints and Grievance Procedures
Raising a complaint or grievance
Complaints handling
Acting for a party in a complaint
Decisions in complaints and grievance investigations
Information following exhaustion of complaints procedures
D Ombudsmen
Complaints handling by ombudsmen
Procedure on references to ombudsmen
Grounds on which ombudsmen make their decisions
Relief available
Can a complainant bring court proceedings?
24 Expert (or Neutral) Determination
278(16)
A What is Expert Determination?
B Cases Suitable for Expert Determination
C Contractual Nature of Expert Determination
D Selection of the Expert
E Procedure
Implied duty to cooperate
F Confidential Information
G Nature of the Decision
H Reasons for the Decision
I Issues that can Arise in Expert Determination
J Ignoring an Expert Determination Clause
Breach of contract
Applications to stay court proceedings pending expert determination
K The Extent of the Expert's Jurisdiction
L Grounds for Challenging the Decision
M Contractual Grounds for Challenge
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
N Other Grounds on Which an Expert's Determination can be Challenged
Material departure from instructions
Fraud
Collusion
O Procedure for Making a Challenge
P Enforcing a Decision
Q Suing the Expert
R Disputes Review Panels
25 Arbitration
294(9)
A Introduction
B Fundamental Concepts in Arbitration
C Requirements
Contractual foundation of arbitration
Mandate of the arbitral tribunal
D Stay of Legal Proceedings
E Commencement
F Procedure in Arbitrations
Preliminary meeting
Directions on procedure and evidence
Pre-trial hearing/conference
Bundles
No right to an oral hearing
The hearing
Closing of proceedings
G Privacy and Confidentiality
H Awards
I Enforcement of Awards
J Appeals
26 Construction Industry Adjudication
303(4)
A Introduction
B Requirements
Construction contract
Dispute
C Contractual Right to Adjudication
D Commencement of the Adjudication
Notice of adjudication: the commencement of adjudication
Ambit of the reference
Nomination of adjudicator
Referral notice
E Procedure
Timetable for procedural steps
Response to referral notice
Subsequent statements of case
F Adjudicator's Decision
G After the Adjudication
Index 307
Professor Susan Blake is Associate Dean at City Law School, City University London. She worked at the Bar for 3 years, in civil and family practice. She was Programme Director of the Bar Vocational Course in its early years, and has more recently developed LLM provision. She is the author of A Practical Approach to Effective Litigation, and co-author of A Practical Approach to ADR, both published by Oxford University Press.

Julie Browne is a Deputy Course Director of the BPTC at City University London, where she teaches advocacy, civil litigation, drafting, company law and commercial law. She was called to the Bar in 1989 and during 10 years in full-time practice, she undertook a wide variety of general civil and commercial work, including insolvency, company and property litigation. She is the series editor of the 14 bar vocational manuals, a contributor to Blackstone's Civil Practice, and co-author of A Practical Approach to ADR, both published by Oxford University Press. She is also an experienced CPD trainer in advocacy, evidence, case preparation, drafting, and litigation.

Professor Stuart Sime is the Course Director of the full-time BPTC at City University London, where he teaches civil litigation, commercial and company law. He was a practising barrister until 2005. In his early career he spent a number of years in the litigation department of the Treasury Solicitor's Office. He is joint Editor of Blackstone's Civil Practice, the author of A Practical Approach to Civil Procedure and co-author of A Practical Approach to ADR, all published by Oxford University Press.