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El. knyga: Jackson ADR Handbook

(Deputy Course Director, City Law School, City University London, City University London), (Course Director, Bar Professional Training Course at City La), (Associate Dean, City Law School, City University London, City University London)
  • Formatas: 384 pages
  • Išleidimo metai: 19-Aug-2021
  • Leidėjas: Oxford University Press
  • Kalba: eng
  • ISBN-13: 9780192637109
  • Formatas: 384 pages
  • Išleidimo metai: 19-Aug-2021
  • Leidėjas: Oxford University Press
  • Kalba: eng
  • ISBN-13: 9780192637109

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The Jackson ADR Handbook was created following recommendations by Lord Justice Jackson for an authoritative handbook for Alternative Dispute Resolution (ADR). The first edition, written in collaboration with a specialist editorial advisory board, 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. The second edition built upon that success, becoming a set text with the Bar Standards Board. This fully revised third edition integrates a range of important new case law, locates ADR within
an increasingly digital landscape, and addresses calls from within the judiciary for ADR to be incorporated at all stages of the dispute resolution process.

Designed in a concise, user-friendly format, the text provides an in-depth overview of the options and principles of ADR, before looking at five focused areas: the interplay between ADR, CPR, and litigation; negotiation; mediation; recording and enforcing settlement; and other ADR options including
the international perspective. Additional materials such as mediation providers, specimen documents, precedents, and practice tips are available on a companion website at www.oup.com/ADR3e.

Recenzijos

Review from previous edition 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. *

Daugiau informacijos

Companion Website
Table of Cases
xxiii
Table of Statutes
xxxvii
Glossary and Abbreviations xli
1 GENERAL PRINCIPLES
1 General Principles of ADR
A The Importance of ADR
1(2)
B The Definition of ADR
3(2)
C The Role of the Courts in the Use of ADR
5(2)
D The Role of Judges in the Use of ADR
7(6)
E The Context of the Jackson Review of Costs
13(4)
F Key Recent Developments
17(3)
G The Success of ADR
20(2)
H Compulsion to Use ADR
22(2)
I Regulation of ADR
24(5)
J The International Context
29
2 The Range of ADR Options
A Adjudicative Options
2(11)
Arbitration
4(4)
Adjudication
8(3)
Expert determination
11(1)
Other adjudicative options
12(1)
B Non-Adjudicative Options
13(17)
Offer and acceptance
14(2)
Negotiation
16(3)
Mediation
19(5)
Early neutral/expert evaluation
24(2)
Mini trial
26(1)
Conciliation
27(1)
Complaint or grievance procedures
28(1)
Other options
29(1)
C Motivations for the Use of ADR
30(11)
Lower costs
31(1)
Speed of settlement
32(1)
Choice of forum
33(1)
Control of process
34(1)
Flexibility of process
35(1)
Confidentiality
36(1)
A wider range of issues/outcomes may be considered
37(1)
Shared future interests may be protected
38(1)
Use of a problem-solving approach
39(1)
Risk management
40(1)
D Criteria for the Selection of an ADR Option
41(8)
How important is it to minimize costs?
42(1)
How important is fast resolution?
43(1)
How much control does the party want?
44(1)
What are the main objectives of the party?
45(1)
Is a future relationship important?
46(1)
Is the view of an expert important to key issues?
47(1)
Would neutral assistance be valuable?
48(1)
E When ADR May not Be Appropriate
49
The need for a precedent
50(1)
The importance of a court order
51(1)
The relevance of interim orders
52(1)
Evidential rules are important
53(1)
The strength of a case
54(1)
The complexity of the case
55(2)
High levels of animosity
57(1)
Power imbalance
58(1)
Quasi-criminal allegations
59(1)
Having a day in court
60(1)
Enforcement may be an issue
61
3 Timing the Use of ADR in Relation to the Progress of a Case
A The Importance of Timing
1(3)
B Procedural Factors Relevant to Timing
4(20)
Pre-selection of ADR
4(2)
The use of ADR at the pre-action stage
6(3)
On issue of proceedings
9(1)
Case and costs management and directions
10(4)
The use of ADR at an interim stage
14(5)
The use of ADR before and during trial
19(2)
The use of ADR in relation to appeals
21(2)
The use of ADR in relation to assessment of costs
23(1)
C Practical Factors Relevant to Timing
24
The overriding objective
25(1)
The position as regards costs
26(1)
The timeframe for reaching resolution
27(1)
The issues in the case
28(1)
The availability of information
29(1)
The availability and importance of evidence
30(2)
The importance of interim applications
32(1)
The strength of a case
33(1)
Antagonism between the parties
34(1)
Specific types of case
35
4 Roles and Responsibilities of Lawyers and Parties in ADR
A Overview
1(1)
B Duties Under the Civil Procedure Rules
2(1)
C The Role of a Lawyer in Advising on ADR
3(4)
D Authority to Settle
7(2)
E The Role of a Lawyer in Advising on Terms of Settlement
9(2)
F The Role and Responsibilities of Parties in Relation to ADR
11(2)
G Addressing Concerns About ADR
13(10)
Appropriateness of the litigation process
14(1)
Robustness of process
15(1)
Proposing ADR may indicate weakness
16(1)
ADR might undermine litigation
17(1)
ADR might provide pressure to settle
18(1)
ADR may be used as a delaying tactic
19(1)
Limited knowledge of ADR process may be a concern
20(1)
ADR may incur extra expense
21(1)
ADR may be abused where a claim lacks merit
22(1)
H Persuading Another Party to Use ADR
23(10)
Identify and address concerns
26(1)
Propose specific benefits that ADR might offer
27(1)
Offer information about ADR options
28(1)
Propose a limited or simple ADR option
29(1)
Offer carrots
30(1)
Offer to pay reasonable ADR fees
31(1)
Engage the assistance of the judge
32(1)
I Potential Liability of a Lawyer in Relation to ADR
33
Complaints
36(1)
Wasted costs
37(1)
Professional negligence
38
5 Privacy, Privilege, and Confidentiality Clauses
A Importance of Privacy and Confidentiality in ADR
1(8)
B Control of Information in ADR
9(6)
C Legal Professional Privilege and ADR
15(2)
D The `Without Prejudice' Principle
17(10)
E Confidentiality Clauses
27(9)
Negotiation
30(1)
Mediation
31(2)
Experts, early neutral evaluation, or expert determination
33(1)
Arbitration
34(2)
F Potential Loss of Confidentiality
36(5)
G Agreements to Keep Terms of Settlement Confidential
41
6 Ethics
A Professional Responsibilities in ADR
1(2)
B Solicitors
3(2)
C Barristers
5(2)
D Acting in the Client's Best Interests
7(2)
E Acting within Instructions
9(2)
F Duties in Relation to Client Confidentiality
11(3)
G Duties in Relation to an Opponent
14(2)
H Duties in Relation to a Funder
16(2)
I Duties in Relation to a Court
18(1)
J Lawyers who Provide ADR
19
7 Funding ADR Procedures
A Expense and Funding
1(5)
B The Potential for ADR to Save Costs
6(2)
C The Potential Cost of an ADR Process
8(14)
Negotiation
11(2)
Mediation
13(5)
Arbitration
18(3)
Early neutral evaluation, expert determination, and adjudication
21(1)
D Funding Bases for an ADR Process
22(12)
Self-funding
24(1)
Insurance
25(2)
Third party or litigation funding
27(1)
Conditional fee agreement (CFA)
28(2)
Damages-based agreements (DBA)
30(2)
Legal Aid Agency funding
32(1)
Other options
33(1)
E Costs Management and Proportionality
34(5)
Costs management
35(2)
Proportionality
37(2)
F Overall Financial Analysis and Risk
39
8 ADR Prior to the Issue of Proceedings
A The Context where No Proceedings Have Been Issued
1(5)
B Powers of the Court Prior to Issue of Proceedings
6(1)
C Part 36 Offers Prior to Issue
7(1)
D Settlements Reached with No Issue of Proceedings
8(2)
E Pre-Action Costs
10(4)
F Practice Direction Pre-Action Conduct and Protocols Requirements
14(5)
G Making Reasonable Attempts to Settle where No Proceedings Have Been Issued
19(5)
Proposing ADR
21(1)
Responding to a proposal to use ADR
22(2)
H Potential Justifications for Non-Compliance
24
2 INTERPLAY BETWEEN ADR, CPR, AND LITIGATION
9 The Approach of the Courts to ADR
A Introduction
1(4)
B Judicial Encouragement of ADR
5(1)
C Can the Court Compel the Parties to Use ADR?
6(9)
D The Court Guides
15(1)
E Pre-Action Protocols
16(1)
F The Overriding Objective and ADR
17(3)
G Case Management Powers and ADR
20(2)
H Directions Questionnaires and ADR
22(2)
I Granting Stays for ADR
24(3)
J Contractual ADR Clauses
27(9)
K Costs Alternative Dispute Resolution
36
10 Costs and Cost Shifting in ADR
A Liability to Pay for an ADR Process
1(4)
B Recovery of Costs within an ADR Process
5(3)
Advance agreement on costs
5(1)
Subsequent agreement on costs
6(1)
Award of costs in adjudicative ADR
7(1)
C Recovery of ADR Costs within a Court Process
8(28)
General principles
8(6)
If a settlement is reached
14(1)
A decision on costs alone
15(1)
At an interim stage
16(1)
As part of damages
17(1)
At trial
18(4)
The amount of costs
22(14)
D Part
36
Offers
25(7)
Qualified one-way cost shifting
32
11 Sanctions for Refusing to Engage in ADR Processes
A Introduction
1(3)
B The Court's General Powers to Make Costs Orders
4(1)
C Failure to Comply with Pre-Action Protocols
5(2)
D Unreasonable Refusal to Consider ADR
7(16)
The nature of the dispute
10(1)
The merits of the case
11(4)
Extent to which other settlement methods have been attempted
15(3)
Whether the costs of ADR would be disproportionately high
18(1)
Whether delay in setting up and attending ADR would be prejudicial
19(1)
Whether ADR had a reasonable prospect of success
20(3)
E Other Factors
23(11)
Whether an ADR order was made by the court
24(3)
Obtaining further evidence or information before using ADR
27(3)
The impact of Part 36 offers on a refusal to use ADR
30(3)
Unreasonable refusal of other offers
33(1)
F The Claimant's Failure to Initiate ADR Processes
34(4)
G Failing to Make an Offer to Settle a Claim
38(3)
H Delay in Consenting to ADR
41(2)
I Both Parties at Fault
43(2)
J Rejecting ADR Before the Hearing of an Appeal
45(3)
K Backing out of ADR
48(2)
L Unreasonable Conduct in Mediation
50(2)
M Indemnity Costs Orders for Unreasonable Conduct Regarding ADR
52(7)
N Silence in the Face of an Invitation to Use ADR
59(3)
O Prevarication in Relation to ADR
62(1)
P What Practical Steps should be Taken by a Party to Avoid Sanctions?
63(2)
Q Privileged Material and Sanctions
65
3 NEGOTIATION
12 Negotiation and Joint Settlement Meetings
A Negotiation as a Form of ADR
1(2)
B The Negotiation Process
3(12)
Professional conduct and ethics
5(4)
Procedure and evidence
9(6)
C Negotiation as a Context for Mediation
15(1)
D Joint Setdement Meetings
16
4 MEDIATION
13 Mediation: General Principles
A What is Mediation?
1(1)
B Does Mediation Work?
2(2)
C Why Does Mediation Work?
4(2)
D Comparison Between Negotiation and Mediation
6(1)
E Judicial Endorsement of Mediation
7(1)
F Disputes Suitable for Mediation
8(3)
G The Timing of Mediation
11(5)
H Persuading a Reluctant Party to Consider Mediation?
16(1)
I What Can Be Done by the Court to Make a Reluctant Party Consider Mediation?
17(1)
J The Costs of Mediation
18(3)
K The Funding of Mediation Costs, Fees, and Expenses
21(1)
L The Mediator's Role
22(7)
Organizing the mediation process
23(2)
Acting as a facilitator
25(1)
Acting as intermediary
26(2)
Post-mediation role
28(1)
M Ethical Conduct Required of the Mediator
29(14)
Competence
33(1)
Independence and neutrality
34(1)
Impartiality
35(1)
The mediation procedure
36(1)
Fairness
37(2)
Confidentiality
39(1)
Termination of the mediation
40(3)
N Accreditation and Regulation of Mediation
43(1)
Training and accreditation requirements
43(1)
O The Civil Mediation Council
44(3)
P Confidentiality in Mediation
47(10)
Information given to the mediator
50(1)
Can the mediator enforce the confidentiality clause?
51(1)
When will the court override the confidentiality provisions?
52(4)
Other exceptions to confidentiality
56(1)
Q The Without Prejudice Rule in Mediation
57(5)
Communications that are not protected by the without prejudice rule in mediation
60(1)
Can the mediator rely on the without prejudice rule?
61(1)
R Legal Advice Privilege in Mediation
62(1)
S The Mediator as Witness
63(1)
T Can a Mediator be Sued?
64
Legal proceedings
64(3)
Disciplinary proceedings
67
14 Preparation for the Mediation
A Introduction
1(2)
B Styles of Mediation
3(16)
Facilitative mediation
5(4)
Evaluative mediation
9(8)
Transformative mediation
17(2)
C Selecting a Mediator
19(16)
Factors influencing the selection of a mediator
22(13)
D The Duration of Mediation
35(2)
E Selecting a Venue
37(5)
F The Agreement to Mediate
42(5)
G Pre-Mediation Meeting/Contact
47(2)
H The Attendees
49(12)
Representatives of the parties
51(1)
Person with authority to settle
52(1)
Lawyers
53(1)
Insurers
54(1)
Interest groups
55(1)
Experts
56(3)
Witnesses of fact
59(2)
I The Position Statements
61(12)
The aims in drafting the position statement
65(2)
The content of the position statement
67(5)
Joint position statement
72(1)
J The Key Supporting Documents
73(8)
Agreed bundle
73(2)
Confidential bundles
75(6)
K Disclosure of Other Documents
81(1)
L Complete Case Papers
82(1)
M Further Information the Mediator May Require
83(1)
N Risk Assessment
84(5)
O Options for Settlement
89(1)
P Specimen Settlement Clauses
90(1)
Q Conclusion
91
15 The Mediation Process
A When Does the Mediation Start?
1(3)
B The Stages in Mediation
4(4)
C The Opening Stage
8(7)
The opening joint meeting (plenary session)
8(1)
Extension of the plenary session
9(1)
The separate private meetings (or closed meetings)
10(5)
D The Exploration/Information Stage
15(4)
Carrying out a `reality test'
16(1)
Probing the underlying issues
17(1)
Helping the parties to devise options for settlement
18(1)
E The Negotiating/Bargaining Stage
19(6)
Joint meetings of the legal representatives of the parties
22(1)
Joint meetings between the lay clients
23(1)
Joint meetings of the experts
24(1)
F The Settlement/Closing Stage
25(5)
If setdement is reached
25(4)
If no settlement is reached
29(1)
G The Closing Joint Meeting
30(1)
H The Mediator's Role Following the Conclusion of the Mediation
31(5)
I Main Variations in the Process
36(3)
Evaluative mediation
38(1)
J Med-Arb
39(3)
K Arb-Med
42(6)
Telephone mediations
44(3)
Mediations conducted online
47(1)
L Mediation Advocacy
48
16 Court Mediation Schemes and Other Schemes
A Introduction
1(3)
B Historic Schemes
4(1)
C Current Court Mediation Schemes
5(10)
The HMCTS Small Claims Mediation Service
6(4)
Court of Appeal Mediation Scheme
10(2)
The County Court at Central London Mediation Pilot Scheme
12(1)
The Housing Possession Mediation Pilot Scheme
13(1)
The Court of Protection Mediation Scheme
14(1)
D Civil Mediation Online Directory
15(6)
The Fixed Fee Mediation Scheme
16(5)
E Judicial Mediation Schemes 16.17 Court settlement process in the Technology and Construction Court
21(3)
Judicial mediation in Employment Tribunals
23(1)
F Mediation in Specific Cases
24(6)
Mediation in cases in the Commercial Court
24(1)
Complex construction, engineering, and technology disputes
25(1)
Family cases
26(1)
Workplace mediation
27(2)
Mediation in employment disputes
29(1)
G Mediating Multi-Parry Disputes
30(6)
H Other Mediation Processes
36(8)
Project mediation
36(1)
Mini-trial or executive tribunal
37(5)
Consensus-building mediation
42(1)
Deal mediation
43(1)
I Community Mediation
44(4)
J Pro Bono Mediation and Law Works
48
17 EU Directive on Mediation in Civil and Commercial Cases
A Introduction
1(1)
B The EU Mediation Directive
2(18)
Objective of the Directive
3(2)
Application of the Directive
5(2)
Main provisions of the EU Directive
7(1)
Ensuring the quality of mediation
8(9)
Implementation of the Directive by the UK
17(1)
The effect of Brexit
18(1)
Implementation of the EU Mediation Directive in other Member States
19(1)
C European Code of Conduct for Mediators
20
5 RECORDING AND ENFORCING SETTLEMENT
18 Recording Setdement--Private Agreement
A Reaching a Clear Outcome
1(5)
Funding arrangements and reasonable offers
4(2)
B Forms of Recorded Outcome
6(5)
Written agreement
7(2)
Full and final settlement
9(2)
C Records Made During the ADR Process
11(3)
D Forms for Recording Settlement
14(8)
Oral contract
15(1)
Exchange of letters or emails
16(2)
Formal written contract
18(2)
Other legal documents
20(2)
E Drafting Terms of Settlement
22
19 Recording Setdement--Court Proceedings
A Settlements in Existing Court Proceedings
1(1)
B Methods of Recording Settlements in Court Proceedings
2(14)
Judgment for immediate payment or by instalments
4(1)
Endorsement of settlement on backsheets
5(1)
Interim consent order
6(4)
Tomlin Order
10(5)
Restrictions on consent orders and judgments
15(1)
C Dealing with the Proceedings
16(1)
D Drafting of Consent Orders
17(1)
E Terms as to Costs
18(2)
F Administrative Consent Orders
20(1)
G Informing the Court of Settlement
21
20 Enforcement of Settlements
A Introduction
1(1)
B Methods of Enforcing Compromise Agreements
2(1)
C Discharge of Original Obligation by Compromise
3(1)
D Enforcement of Compromise Contracts
4(4)
Effect of endorsements on briefs
4(1)
Enforcement by civil proceedings
5(2)
Bankruptcy and winding-up
7(1)
E Challenging Compromise Contracts
8(1)
F Enforcement of Court Orders
9
6 OTHER ALTERNATIVE DISPUTE RESOLUTION OPTIONS AND THE INTERNATIONAL PERSPECTIVE
21 Online ADR and ODR
A Overview
1(4)
B The Use of Portals for Claim Management and Settlement
5(2)
C The Use of Online Resources to Support ADR Processes
7(4)
D The Development of ODR Options
11(7)
E International Developments
18
Principles for international ADR and ODR
20(2)
European Union regulation
22
22 Early Neutral Evaluation
A Introduction
1(4)
B At what Stage Should ENE Be Employed?
5(1)
C When Should ENE Be Used?
6(2)
D Choice of Evaluator
8(2)
E Procedure
10(4)
F Neutral Fact-Finding
14(1)
G Judicial Evaluation
15
Judicial evaluation in the Commercial Court
16(1)
Judicial evaluation in the Technology and Construction Court
17(2)
Judicial evaluation in the Chancery Division
19(1)
Judicial evaluation in the Queens Bench Division
20
23 Conciliation, Complaints, Grievances, and Ombudsmen
A Introduction
1(2)
Definitions
2(1)
B Conciliation
3(5)
Employment conciliation
4(4)
C Complaints and Grievance Procedures
8(8)
Raising a complaint or grievance
9(1)
Complaints handling
10(3)
Acting for a party in a complaint
13(1)
Decisions in complaints and grievance investigations
14(1)
Information following exhaustion of complaints procedures
15(1)
D Ombudsmen
16
Complaints handling by ombudsmen
18(1)
Procedure on references to ombudsmen
19(1)
Grounds on which ombudsmen make their decisions
20(2)
Reliefavailable
22(1)
Can a complainant bring court proceedings?
23
24 Expert (or Neutral) Determination
A What is Expert Determination?
1(8)
B Cases Suitable for Expert Determination
9(1)
C Contractual Nature of Expert Determination
10(2)
D Selection of the Expert
12(1)
E Procedure
13(4)
Implied duty to cooperate
16(1)
F Confidential Information
17(2)
G Nature of the Decision
19(1)
H Reasons for the Decision
20(3)
I Issues that Can Arise in Expert Determination
23(1)
J Ignoring an Expert Determination Clause
24(4)
Breach of contract
24(1)
Applications to stay court proceedings pending expert determination
25(3)
K The Extent of the Expert's Jurisdiction
28(3)
L Grounds for Challenging the Decision
31(3)
M Contractual Grounds for Challenge
34(14)
No reasons for decision
34(1)
Manifest error
35(4)
An error of law
39(2)
Failure to act lawfully or fairly
41(3)
The decision is not intended to be final on matters of construction
44(4)
N Other Grounds on Which an Expert's Determination Can Be Challenged
48(5)
Material departure from instructions
48(3)
Fraud
51(1)
Collusion
52(1)
O Procedure for Making a Challenge
53(1)
P Enforcing a Decision
54(1)
Q Suing the Expert
55(1)
R Disputes Review Panels
56
25 Arbitration
A Introduction
1(2)
B Fundamental Concepts in Arbitration
3(2)
C Requirements
5(3)
Contractual foundation of arbitration
6(1)
Mandate of the arbitral tribunal
7(1)
D Stay of Legal Proceedings
8(2)
E Commencement
10(2)
F Procedure in Arbitrations
12(9)
Preliminary meeting
13(3)
Pre-trial hearing/conference
16(1)
Bundles
17(1)
No right to an oral hearing
18(1)
The hearing
19(2)
G Privacy and Confidentiality
21(1)
H Awards
22(2)
I Enforcement of Awatds
24(2)
J Appeals
26
26 Construction Industry Adjudication
A Introduction
1(2)
B Requirements
3(2)
Construction contract
3(1)
Dispute
4(1)
C Contractual Right to Adjudication
5(1)
D Commencement of the Adjudication
6(5)
Notice of adjudication: the commencement of adjudication
6(1)
Ambit of the reference
7(2)
Nomination of adjudicator
9(1)
Referral notice
10(1)
E Procedure
11(3)
Timetable for procedural steps
11(1)
Response to referral notice
12(1)
Subsequent statements of case
13(1)
F Adjudicator's Decision
14(2)
G After the Adjudication
16(313)
Index 329
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 (6e forthcoming 2022), 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 (6e forthcoming 2022), 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 (6e forthcoming 2022), all published by Oxford University Press.