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Practical Approach to Alternative Dispute Resolution 4th Revised edition [Minkštas viršelis]

(The City Law School), (The City Law School), (The City Law School)
  • Formatas: Paperback / softback, 672 pages, aukštis x plotis x storis: 247x190x32 mm, weight: 1122 g
  • Serija: A Practical Approach
  • Išleidimo metai: 23-Jun-2016
  • Leidėjas: Oxford University Press
  • ISBN-10: 0198747667
  • ISBN-13: 9780198747666
Kitos knygos pagal šią temą:
Practical Approach to Alternative Dispute Resolution 4th Revised editionDidesnis paveikslėlis
  • Formatas: Paperback / softback, 672 pages, aukštis x plotis x storis: 247x190x32 mm, weight: 1122 g
  • Serija: A Practical Approach
  • Išleidimo metai: 23-Jun-2016
  • Leidėjas: Oxford University Press
  • ISBN-10: 0198747667
  • ISBN-13: 9780198747666
Kitos knygos pagal šią temą:
Pastovi nuoroda: https://www.kriso.lt/db/9780198747666.html
A Practical Approach to Alternative Dispute Resolution provides a comprehensive and easily digestible commentary on all the major areas of resolution of disputes out of court. Designed to support teaching and learning on the Bar Professional Training Course, it will also be of interest to practitioners who are looking for a clear exposition of the range of ADR processes.

Written by an authoritative and highly respected author team, A Practical Approach to Alternative Dispute Resolution contains a range of features designed to enhance the reader's understanding of the key points, including sample documentation, flow diagrams, tables, and examples drawn from a range of different types of practice. Numerous cross-references to relevant websites and further resources are also provided.

This fourth edition has been brought fully up to date to reflect current practice and issues affecting ADR. The book's expanded coverage also makes it a suitable text for LLM courses on ADR.

Online Resource Centre - Updates to cases and procedures - Useful links for each chapter - Diagrams and figures from the book
Glossary and abbreviations xxxv
Table of cases xxxviii
Table of statutes li
Part I History And Range Of ADR Methods 1(98)
1 Introduction
3(21)
A Background
3(2)
B What Is ADR?
5(1)
C Why Is There A Need For ADR?
6(1)
D The Growth Of ADR Options
7(1)
E Court Recognition Of ADR
8(2)
F ADR And The Review Of Civil Litigation Costs
10(1)
G Recent Developments
11(2)
H The International Context
13(1)
I Some Issues With Regard To ADR
13(2)
J Potential Advantages Of ADR
15(2)
Lower cost
15(1)
Speed of settlement
15(1)
Control of process
15(1)
Choice of forum
15(1)
A wider range of issues may be considered
15(1)
Wider range of potential outcomes
16(1)
Flexibility of process
16(1)
Flexibility with regard to evidence
16(1)
Confidentiality
16(1)
Use of a problem-solving approach
16(1)
Possible reduction of risk
16(1)
Client satisfaction
17(1)
K Potential Disadvantages Of ADR
17(1)
Increased expense
17(1)
Additional delay
17(1)
Possible reduction in outcome compared to a court judgment
17(1)
Lack of a clear and public finding
17(1)
Loss of potential strategic use of procedural steps
18(1)
Loss of potential advantages of evidential rules
18(1)
Confusion of process
18(1)
L Weighing Up Dispute Resolution Options
18(1)
M The Psychology Of Dispute Escalation
19(1)
N Assessing The Success Of ADR
20(1)
O Overview Of Regulatory Frameworks
20(2)
P Overview Of Training And Accreditation
22(1)
Key Points Summary
23(1)
2 Overview Of ADR Options
24(15)
A Key Elements Of ADR Options
25(1)
B The Role Of The Lawyer With Regard To ADR Options
26(1)
C Non-Adjudicative ADR Options
27(6)
Inter-client discussion
27(1)
Written offers
27(1)
Negotiation
27(3)
Mediation
30(2)
Conciliation
32(1)
Early neutral and/or expert evaluation
32(1)
D Adjudicative ADR Options
33(3)
Arbitration
34(1)
Adjudication
35(1)
Expert determination
36(1)
E Other Options
36(2)
Hybrids
37(1)
Processes for dealing with grievances
37(1)
Specialist systems
37(1)
IT-based options
37(1)
Dispute management systems
37(1)
Complex dispute resolution
38(1)
Key Points Summary
38(1)
3 Factors Influencing The Selection Of An ADR Option
39(17)
A Legal Advice On Appropriate Dispute Resolution Options
39(3)
Overcoming possible problems in advising on ADR
39(1)
The professional duty to give advice
40(1)
When to give advice on ADR options
41(1)
B Advance Selection Of An ADR Option
42(2)
C Factors Influencing ADR Selection
44(6)
Is jurisdiction an issue?
44(1)
Is ADR inappropriate?
44(1)
Is a court decision creating a precedent important?
45(1)
Is a court order necessary?
46(1)
What is the relative cost of possible options?
46(1)
How important is expert knowledge?
46(1)
Is confidentiality important?
46(1)
How much control does the client want?
47(1)
What are the main objectives of the client?
47(1)
Is a future relationship important?
48(1)
What is the relevance of the chances of success?
48(1)
Does the client want a 'day in court'?
48(1)
Would neutral assistance be valuable?
49(1)
What stage has the case reached?
49(1)
How important might interim orders be?
49(1)
Might orders relating to evidence be needed?
50(1)
What is the attitude of the court?
50(1)
Might enforcement be an issue?
50(1)
D Potential Concerns About ADR
50(2)
ADR can undermine litigation
51(1)
Proposing ADR suggests a lack of faith in your case
51(1)
ADR can undermine a lawyer's control of a case
51(1)
ADR does not really save costs
51(1)
ADR is a way of getting something for a weak case
52(1)
ADR involves too much pressure to settle
52(1)
ADR is used as a delaying tactic
52(1)
ADR is not a robust process
52(1)
E Securing Agreement To ADR
52(2)
Suggest specific benefits that ADR might offer
53(1)
Offer information about ADR options
53(1)
Propose a simple ADR option
53(1)
Address any concerns that you think an opponent might have
53(1)
Offer to pay reasonable ADR fees
53(1)
Seek to persuade a judge to order a stay
53(1)
F Confidentiality In Relation To ADR Processes
54(1)
G Timing The Use Of ADR
54(1)
Key Points Summary
55(1)
4 Funding ADR Procedures
56(17)
A The Funding Context
56(2)
B General Considerations
58(2)
What are the main elements of expense in the case?
58(1)
How much is at stake in the case?
58(1)
How is the case being funded?
59(1)
The extent to which expense has already been incurred
59(1)
The chances of success
59(1)
The possibility that costs may be recovered or liability for costs may shift
59(1)
C Elements Of Expense
60(1)
Solicitor fees
60(1)
Barrister fees
60(1)
Evidence and information
60(1)
Disbursements
60(1)
Process fees
60(1)
D What ADR Processes Cost
60(4)
ADR provider's fee
61(1)
Negotiation
62(1)
Mediation
63(1)
Arbitration
63(1)
Other forms of ADR
64(1)
E Effects Of The Funding Basis
64(3)
Conditional fee agreement funding
64(1)
Damages-based agreement
65(1)
Insurance
65(1)
Third-party funding
65(1)
Legal Aid Agency funding
66(1)
F Shifting The Liability For Costs—part 36 Offers
67(1)
G Considerations For The Parties
68(1)
H Overall Financial Analysis And Risk Assessment
69(1)
I Basic Example Of ADR Financial Considerations
70(2)
Key Points Summary
72(1)
5 Online ADR Options And ODR
73(9)
A Introduction
73(1)
B Background
74(1)
C The Main Bodies Concerned With ODR
75(1)
D The Role Of Technology In ADR
75(1)
E The Role Of Technology In Court Processes
76(1)
F ODR Software Options
77(2)
G Development Of ADR And ODR Within The European Union
79(1)
H Looking Forward
80(1)
Key Points Summary
81(1)
6 Professional Ethics
82(17)
A Introduction
82(1)
B Advising On ADR Options
83(1)
C Lawyers Providing An ADR Service
84(1)
D Compliance With Core Professional Duties
85(3)
To act at all times in the client's best interests
85(1)
To act within the client's instructions
86(1)
To maintain client confidentiality
86(1)
To act competently
87(1)
To act with integrity
87(1)
To be independent
87(1)
Not to mislead anyone
88(1)
Not to bring the system of justice into disrepute
88(1)
Not to make threats
88(1)
E Specific Duties In Negotiation And Mediation
88(1)
F The Duty Of Confidentiality
89(3)
Introduction
89(1)
The extent of the duty
90(1)
Confidentiality in mediation
90(1)
Confidentiality in Early Neutral Evaluation and Expert Determination
91(1)
Confidentiality in adjudicative processes such as arbitration and adjudication
92(1)
G Legal Professional Privilege
92(1)
H Without Prejudice Communications
93(2)
Exceptions To The Without Prejudice Communications Rule
94(1)
I Practical Considerations
95(1)
J Disclosure Of Information In ADR Processes
96(1)
Non-adjudicatory ADR and expert determination
96(1)
Adjudication and arbitration
97(1)
K Authority To Settle
97(1)
L The Relationship Between Barristers And Their Professional Clients In ADR
97(1)
Key Points Summary
98(1)
Part II The Interplay Between ADR, CPR, and Litigation 99(66)
7 The Approach Of The Courts To ADR
101(30)
A Introduction
101(2)
B Pre-Action Protocols
103(4)
Practice Direction—Pre-Action Conduct and Protocols
103(1)
The pre-action protocols
104(1)
The Pre-action Protocol for Possession Claims based on Mortgage or Home Purchase Plan Arrears in Respect of Residential Property
105(1)
The Pre-action Protocol for Construction and Engineering Disputes
105(1)
Family proceedings
106(1)
C The Court Guides
107(4)
The Admiralty and Commercial Courts Guide
107(1)
The Chancery Guide
108(2)
The Queen's Bench Guide
110(1)
The Technology and Construction Court Guide
110(1)
The Mercantile Court Guide
111(1)
D The Overriding Objective And ADR
111(1)
E Active Case Management And ADR
112(3)
A more robust approach since 1 April 2013
112(1)
Case management orders and ADR
113(1)
Part 36 offers to settle
114(1)
F Costs Management And ADR
115(3)
G Directions Questionnaires And ADR
118(1)
H Granting Stays For ADR
119(2)
I Judicial Encouragement Of ADR
121(2)
J The Approach Of The Courts To Contractual ADR Clauses
123(3)
K Costs Alternative Dispute Resolution
126(1)
L Can The Court Compel The Parties To Use ADR?
127(3)
Key Points Summary
130(1)
8 The Sanctions For Refusing To Engage In ADR Processes
131(27)
A Introduction
131(1)
B The Courts General Powers To Make Costs Orders
132(1)
C Adverse Costs Orders Against A Party Who Fails To Comply With The Pre-Action Protocols
133(1)
D Adverse Costs Orders Against A Party Who Unreasonably Refuses To Consider ADR
134(13)
The nature of the dispute
135(1)
The merits of the case
135(2)
The extent to which other settlement methods have been attempted
137(6)
Whether the costs of ADR would be disproportionately high
143(1)
Whether any delay in setting up and attending ADR would be prejudicial
144(1)
Whether ADR had a reasonable prospect of success
144(3)
E Other Factors
147(3)
Whether an ADR order was made by the court
147(1)
Obtaining further information or evidence before using ADR
148(1)
Both parties at fault
149(1)
F Rejecting ADR After Judgment And Before The Hearing Of An Appeal
150(1)
G Delay In Consenting To ADR
151(1)
H Backing Out Of An Agreed ADR Process
151(1)
I Unreasonable Conduct In The Mediation
152(1)
J Imposing A Costs Cap On Solicitor-Client Costs For Failing To Pursue ADR
152(1)
K Indemnity Costs Orders For Failing To Consider ADR
153(1)
L What Practical Steps Should Be Taken By A Party To Avoid Sanctions?
154(1)
M How Does The Court Treat Privileged Material When Seeking To Impose Sanctions?
155(1)
Key Points Summary
156(2)
9 Recovery Of ADR Costs In Litigation
158(7)
A Introduction
158(1)
B Costs Of Interim Applications Relating To ADR
158(1)
C Recovery Of The Costs Of Unsuccessful ADR Processes
159(4)
ADR processes that deal with costs
159(1)
Costs of failed ADR as part of the costs of litigation
159(1)
The agreement between the parties determines liability in respect of ADR costs
160(1)
The parties make no agreement about the costs of the ADR process
161(1)
Agreement between the parties for the costs of the ADR process to be costs in the case
162(1)
Settlement or determination on all issues apart from costs
163(1)
D Recovering The Costs Of An ADR Process As Damages
163(1)
Key Points Summary
164(1)
Part III Negotiation And Mediation 165(200)
10 Overview Of Negotiation And Mediation
167(2)
11 Styles, Strategies, And Tactics In Negotiation
169(14)
A The Importance Of Style, Strategy, And Tactics
169(1)
B Styles
170(1)
Co-operative
170(1)
Competitive/confrontational
170(1)
Choice of style
170(1)
C Strategies
170(6)
Co-operative
171(1)
Competitive or positional
171(1)
Collaborative—principled or problem solving
172(2)
Pragmatic
174(1)
Choice of strategy
175(1)
Interaction of strategies
176(1)
D Tactics
176(6)
Tactics relating to information
177(1)
Tactics relating to offers and demands
178(1)
Tactics relating to structure
179(1)
Tactics relating to presentation
180(1)
Tactics relating to law
181(1)
Key Points Summary
182(1)
12 Preparing For Negotiation
183(18)
A The Importance Of Preparation
183(1)
B Identifying The Objectives
183(1)
C The Importance Of The Procedural Stage The Case Has Reached
184(2)
The case is at a very early stage
184(1)
The case is at a pre-action protocol stage
185(1)
After the issue of proceedings
185(1)
The case is being prepared for trial
186(1)
D Identifying The Issues
186(1)
E The Relevance of the Legal Context
186(1)
F Preparing To Deal With Facts And Evidence
187(2)
The client's view of the facts and evidence
187(1)
The opponent's view of the facts and evidence
188(1)
Dealing with gaps and ambiguities
188(1)
Preparing to deal with facts and information in negotiation
189(1)
G Preparing To Deal With Figures
189(1)
H Identifying Persuasive Arguments
190(2)
Arguments based on the application of the law
191(1)
Arguments based on facts
191(1)
Merit-based or moral argument
191(1)
Practical or personal arguments
191(1)
Mixed arguments
192(1)
I Planning Potential Demands, Offers, And Concessions
192(3)
Plan what you will seek from the other side
192(1)
Plan how and when you will ask
193(1)
Plan what you might offer
193(1)
Plan how and when you might make offers
194(1)
J Linking Concessions
195(1)
K Identifying The Batna
195(2)
L Identifying The Watna
197(1)
M Clarifying Your Instructions And Authority
197(1)
Key Points Summary
198(3)
13 The Negotiation Process
201(23)
A When, How, And Where
201(2)
B Who
203(1)
C Communicating Effectively
203(3)
Reciprocal or 'mirroring' behaviour
204(1)
Effective presentation
204(1)
Responding effectively
205(1)
Questioning effectively
205(1)
Listening effectively
205(1)
D Structure And Agenda Setting
206(1)
E Opening
207(3)
Open by agreeing an agenda
207(1)
Open with a statement or a proposal
207(1)
Start by asking some key questions
208(1)
Invite your opponent to open
208(1)
Start with items that can be agreed easily
209(1)
Start with items where your case is strong
209(1)
Make limits on authority clear
209(1)
Refer to privilege for discussion
210(1)
Dealing with problems in opening
210(1)
F Seeking Information
210(2)
G Making Your Case On The Issues
212(2)
Presenting The Merits Of Your Case
212(1)
Addressing weaknesses in your case
212(1)
Bringing out weaknesses in your opponent's case
213(1)
Proposing an outcome
213(1)
Additions to oral argument
213(1)
H Planning And Timing Concessions, Offers, And Demands
214(5)
Implementing concession plan
214(1)
Gaining concessions
215(1)
Making demands
215(1)
Making concessions
216(1)
Linking concessions
216(1)
Making offers
217(1)
Reaching a deal
217(1)
Bargaining tactics
218(1)
I Making Progress
219(1)
J Dealing With Difficulties
219(3)
Gaps in information
219(1)
Getting bogged down, or reaching deadlock
220(1)
Dealing with a poorly prepared opponent
220(1)
Dealing with a very competitive opponent
221(1)
Frustration and emotion
221(1)
Concern about possible inexperience
221(1)
K Reaching A Close-Settlement Or Breakdown
222(1)
Making an oral contract
222(1)
Recording the outcome
222(1)
No agreement is reached
223(1)
Key Points Summary
223(1)
14 Mediation: General Principles
224(36)
A What Is Mediation?
224(1)
B Why Is Mediation An Effective ADR Process?
225(2)
C Judicial Endorsement Of Mediation
227(2)
D Disputes Suitable For Mediation
229(1)
E The Advantages Of Mediation
229(1)
F Does Mediation Work?
230(2)
G Why Do The Parties Use Mediation?
232(1)
H What Can Be Done To Make A Reluctant Party Engage In Mediation?
232(2)
Mediation Information Assessment Meetings
234(1)
I The Timing Of Mediation
234(3)
Before litigation begins
235(2)
After litigation begins
237(1)
J The Costs Of Mediation
237(2)
The party's own costs of preparing for the mediation
237(1)
The mediator's fee
237(1)
Expenses of the mediation
238(1)
K The Funding Of Mediation Costs, Fees, And Expenses
239(1)
Public funding
239(1)
Funding under a CFA
239(1)
L Styles Of Mediation
239(3)
Facilitative mediation
240(1)
Evaluative mediation
241(1)
Transformative mediation
242(1)
M The Role Of The Mediator
242(2)
Organizing the mediation process
242(1)
Acting as a facilitator
243(1)
Acting as intermediary
244(1)
Post-mediation role
244(1)
N Accreditation and Regulation of Mediation
244(2)
Introduction
244(1)
Training requirements
245(1)
O The Civil Mediation Council
246(1)
The CMC Mediation Provider Registration Scheme
246(1)
The CMC Individual Registration Scheme
247(1)
Is further regulation required?
247(1)
P Ethical Considerations Affecting Mediators
247(4)
Competence
248(1)
Independence and neutrality
248(1)
Impartiality
249(1)
The mediation procedure
249(1)
Fairness
249(1)
Confidentiality
249(1)
Termination of the mediation
250(1)
Repeat instructions
250(1)
Practice administration
250(1)
Q The Without Prejudice Rule In Mediation
251(3)
Communications that are not protected by the without prejudice rule in mediation
252(2)
Can the mediator rely on the without prejudice rule?
254(1)
R Legal Advice Privilege In Mediation
254(1)
S Confidentiality In Mediation
255(2)
Example of a confidentiality clause
255(1)
Information given to the mediator
255(1)
Can the mediator enforce the confidentiality clause?
256(1)
When will the court override the confidentiality provisions in the interests of justice?
256(1)
Other exceptions to confidentiality
256(1)
T The Mediator As Witness
257(1)
Should the law be reformed?
258(1)
U Can A Mediator Be Sued?
258(1)
Legal proceedings
258(1)
Disciplinary proceedings
259(1)
Key Points Summary
259(1)
15 Preparation For The Mediation
260(19)
A Introduction
260(1)
B Selecting A Mediator
260(3)
The qualities required in an effective mediator
261(1)
Factors influencing the selection of a mediator
261(2)
C The Duration Of Mediation
263(1)
D Selecting A Venue
263(1)
E The Agreement To Mediate
264(2)
F Pre-Mediation Meeting/contact
266(1)
G The Attendees
267(2)
Representatives of the parties
267(1)
Person with authority to settle
267(1)
Lawyers
268(1)
Insurers
268(1)
Interest groups
268(1)
Experts
268(1)
Witnesses of fact
269(1)
H The Position Statements
269(2)
The aims in drafting the position statement
270(1)
The content of the position statement
270(1)
Joint position statement
271(1)
I The Key Supporting Documents
271(2)
Agreed bundle
272(1)
Confidential bundles
273(1)
J Disclosure Of Position Statements And Documents
273(1)
K Other Documents That the Parties May Wish To Bring To The Mediation
273(1)
L Other Information That the Mediator May Seek From The Parties Before The Mediation
274(1)
M Risk Assessment
274(1)
N Options For Settlement
275(2)
O Specimen Settlement Clauses
277(1)
P Conclusion
277(1)
Key Points Summary
278(1)
16 The Mediation Process
279(25)
A When Does The Mediation Start?
279(1)
B The Stages In Mediation
280(2)
C The Opening Stage
282(6)
Introductions
282(1)
The opening joint meeting (plenary session)
282(2)
Opening statements by the parties
284(2)
Witnesses and experts
286(1)
Closing the opening joint meeting
286(1)
Extension of the plenary session
287(1)
The separate private meetings (or closed meetings)
287(1)
D The Exploration/information Stage
288(1)
Carrying out a 'reality test'
288(1)
Probing the underlying issues
288(1)
Devising options for settlement
289(1)
E The Negotiating/bargaining Stage
289(3)
Acting as a shuttle-diplomat
290(1)
Devising strategies to help the parties work through deadlock
290(2)
F Joint Open Meetings In The Exploration Or Bargaining Stage
292(1)
Joint meetings of representatives of the parties
292(1)
Joint meetings between the lay clients
292(1)
Joint meetings of the experts
292(1)
G The Settlement/closing Stage
292(2)
If settlement is reached
292(2)
If no settlement is reached
294(1)
H The Closing Joint Meeting
294(1)
I Termination And Adjournment of The Mediation
295(1)
J The Mediator's Role Following The Conclusion Of The Mediation
295(1)
K The Main Variations In The Process
295(3)
Evaluative mediation
296(1)
Evaluation of the merits of the case requested by both parties
296(1)
Evaluation of one or more issues requested by one party only
296(1)
Med-Arb
297(1)
Arb-Med
297(1)
Telephone mediations
298(1)
Mediations conducted online
298(1)
L The Role Of The Advocate In Mediation
298(5)
Preparation and case analysis
299(1)
Mediation advocacy
299(1)
Advisory skills in mediation
300(1)
Delivery of the opening statement at the opening joint meeting
301(1)
The advocate's role during private closed meetings
301(1)
Settlement
302(1)
Key Points Summary
303(1)
17 Reaching A Settlement
304(6)
A Contractual Principles
305(1)
B Oral Agreement And Email
305(1)
C The Responsibilities Of The Lawyer
306(1)
D Checking Coverage And Detail
306(2)
E Recording The Outcome
308(1)
F Building In Enforceability
308(1)
G If No Agreement Is Reached
309(1)
Key Points Summary
309(1)
18 Court Mediation Schemes And Other Schemes
310(55)
A Introduction
310(1)
B Historic Schemes
311(1)
The Central London County Court Voluntary Mediation Pilot Scheme
311(1)
The Central London County Court Compulsory Mediation Pilot Scheme
311(1)
The National Mediation Helpline
312(1)
C Current Court Mediation Schemes
312(4)
The Mayor's and City of London County Court Mediation Scheme
312(1)
The HMCTS Small Claims Mediation Scheme
313(1)
The Court of Appeal Mediation Scheme
314(1)
The West Midlands Family Mediation Scheme
315(1)
County court local schemes
315(1)
D Mediation Information Pilot Court Schemes
316(1)
The Birmingham, Manchester, and Central London County Courts Mediation Information Pilot Schemes
316(1)
The Court of Appeal Mediation Pilot Scheme
316(1)
E The Civil Mediation Online Directory
316(44)
C When Should It Be Used?
360(1)
D Who Should Be Appointed To Carry Out The Evaluation?
360(1)
E The Procedure
360(1)
F Neutral Fact Finding
361(1)
G Judicial Evaluation
361(2)
Judicial evaluation in the Commercial Court
361(1)
Judicial evaluation in the Technology and Construction Court
361(1)
Judicial evaluation in the Chancery Division
362(1)
H Evaluation In Personal Injury Cases
363(1)
Key Points Summary
363(2)
Part V Recording Settlement 365(22)
23 Recording Settlement
367(20)
A Reaching Agreement
367(1)
B Forms Of Recorded Outcome
368(2)
Compromise agreements
369(1)
Full and final settlement
369(1)
Subject to contract
369(1)
C Records Made During The ADR Process
370(1)
D Who Should Produce A Formal Record?
370(1)
E Enforceable Forms For Recording Settlement
370(2)
An oral contract
371(1)
A written contract
371(1)
An award with statutory authority
371(1)
A court order
371(1)
Other legal documents
371(1)
F Drafting Terms Of Settlement
372(1)
G Methods Of Recording Settlement Agreements
372(12)
Exchange of letters
372(1)
Contract or deed
373(2)
Settlements where there are existing court proceedings
375(2)
Endorsement on briefs
377(1)
Interim order
378(1)
Consent order
379(2)
Tomlin order
381(3)
Relitigating after settlement
384(1)
H Terms As Regards Costs
384(1)
I Informing The Court Of Settlement
385(1)
Key Points Summary
385(2)
Part VI Adjudicative ADR 387(154)
24 Expert Or Neutral Determination
389(16)
A Introduction
389(1)
B When Should Neutral Or Expert Determination Be Used?
390(1)
Stage at which the parties may agree to expert determination
390(1)
Cases where expert determination is particularly suitable
390(1)
C Agreement To Use Expert (Or Neutral) Determination
391(1)
D The General Approach Of The Courts To Expert Determination
391(1)
Contractual effect of expert determination clauses
391(1)
Applications to stay court proceedings pending expert determination
391(1)
E Advantages Of Expert Determination
392(1)
F Differences Between Expert Determination And Negotiation, Mediation, And Neutral Evaluation
392(1)
G Similarities With Other Forms Of ADR
393(1)
H Selection of the Neutral Or Expert Determiner
393(1)
I The Process
394(1)
J Confidential Information
394(1)
K The Nature Of The Decision
395(1)
L Reasons For The Decision
395(1)
M The Court Is The Final Decision Maker As To Whether The Expert Has Jurisdiction
395(1)
N Other Grounds For Challenging A Final Decision By Court Proceedings
396(5)
Material departure from instructions
397(1)
Fraud
397(1)
Collusion
397(1)
No reasons for decision
398(1)
Manifest error
398(1)
An error of law
399(1)
Failure to act lawfully or fairly
399(1)
The decision is not intended to be final on matters of construction
400(1)
O Procedure For Making A Challenge
401(1)
P Enforcing A Decision
401(1)
Q Suing The Expert
401(1)
R How Neutral Or Expert Determination Differs From Arbitration
402(1)
S Disputes Review Panels
402(2)
Key Points Summary
404(1)
25 Construction Industry Adjudication
405(16)
A Introduction
405(1)
B Nature Of Adjudication
406(1)
C Requirements
406(2)
Construction contract
407(1)
Dispute
407(1)
Former requirement for written agreement
408(1)
D Express Contractual Right To Adjudication
408(1)
E Default Provisions In The Scheme For Construction Contracts
409(1)
F Commencement Of The Adjudication
409(7)
Notice of adjudication: the commencement of adjudication
409(3)
Ambit of the reference
412(1)
Nomination of adjudicator
412(1)
Referral notice
413(3)
G Procedure Before The Hearing
416(1)
Response to referral notice
416(1)
Subsequent statements of case
416(1)
Timetable for procedural steps
416(1)
Documents, questions, and impartiality
416(1)
Site visits
417(1)
Related disputes
417(1)
Confidentiality
417(1)
H Adjudicator's Decision
417(1)
Inquisitorial approach
417(1)
Hearing
417(1)
The decision-making process
418(1)
Communicating decision to the parties
418(1)
Reasons, interest, and costs
418(1)
I Binding, But Interim Effect, Of Decisions
418(1)
J Immunity Of Adjudicator
419(1)
K Adjudication In Residential Building Contracts
419(1)
L Court Enforcement Of Sum Found Due On Adjudication
419(1)
Key Points Summary
420(1)
26 Arbitration
421(22)
A Introduction
421(1)
B Arbitration And Litigation
422(1)
C Fundamental Concepts In Arbitration
422(1)
D History Of Arbitration
422(1)
E Interpretation Of The Arbitration Act 1996
423(1)
F Contractual Foundation To Arbitration
423(2)
Separability Of Arbitration Clause
424(1)
Mandate of the arbitral tribunal
424(1)
G Requirements
425(7)
Dispute or difference
426(1)
Arbitrable dispute
426(1)
Agreement to arbitrate
427(2)
The arbitration agreement
429(1)
Dispute must come within the arbitration agreement
430(1)
Capacity
431(1)
Conditions precedent to arbitration
431(1)
H Overview Of Arbitration Procedure
432(1)
I General Principles And Duties
432(1)
J Fair Resolution Of Disputes
432(2)
Saving costs and expedition
432(2)
General duty of the tribunal
434(1)
Duty to follow the rules of natural justice
434(1)
Arbitration need not be adversarial
434(1)
K Party Autonomy
434(2)
Mandatory and non-mandatory provisions
434(1)
Sources of party agreement
435(1)
L Court Applications
436(1)
M Different Types Of Arbitration
437(2)
Institutional arbitration
437(1)
Ad hoc arbitration
437(1)
Non-binding arbitration
437(1)
Statutory arbitration
438(1)
Consumer arbitration
438(1)
Med-Arb
438(1)
Family arbitration
439(1)
N Multi-Tiered Dispute Resolution
439(1)
O One-Stop Adjudication
439(1)
P European Convention On Human Rights And Arbitration
439(1)
Q Main Features Of Arbitration
440(1)
Key Points Summary
441(2)
27 Arbitral Tribunals
443(9)
A Introduction
443(1)
B Commencement Of Arbitration
443(1)
Importance of the date of commencement of an arbitration
443(1)
Contractual time limits
443(1)
Limitation periods
444(1)
Date of commencement of arbitration
444(1)
Avoiding the consequences of failing to comply with a time limit
444(1)
C Notice Of Arbitration
444(2)
D Appointment Of Arbitral Tribunal
446(1)
Number of arbitrators
446(1)
Appointing the arbitrators
446(1)
Chairperson
446(1)
Umpire
446(1)
Judges as arbitrators
447(1)
Failure of appointment procedure
447(1)
E Contractual Basis Of The Arbitrators' Mandate
447(1)
Qualifications of arbitrators
448(1)
Impartiality and independence
448(1)
F Terms Of Reference
448(1)
G Removal, Resignation, And Vacancies
449(1)
Removal
449(1)
Resignation
449(1)
Death
449(1)
Vacancies
450(1)
H Immunities
450(1)
Immunity of arbitrators
450(1)
Immunity of arbitral institutions
450(1)
I Liability For Arbitrators' Fees
450(1)
Key Points Summary
451(1)
28 The Commercial Arbitration Process
452(27)
A Introduction
452(1)
B Definition Of 'Commercial'
452(1)
C Privacy And Confidentiality
453(1)
Privacy
453(1)
Confidentiality
453(1)
D Range Of Procedural Approaches In Arbitration
454(1)
E Procedural Rules Governing The Arbitration
454(2)
Bespoke arbitration clause
454(1)
Arbitral institution rules
454(2)
Silence in institutional rules
456(1)
F Role Of Legal Representatives In Arbitration
456(2)
Advice on the arbitration clause
456(1)
Reference of a dispute to arbitration
456(1)
Defining the issues
457(1)
Putting together the case
457(1)
Hearings
457(1)
G Commencement
458(1)
H Took-Sniff' Arbitrations
458(1)
I Short-Form Arbetrations
458(1)
J General Procedure In Commercial Arbitration
459(15)
Preliminary meeting
460(1)
Procedural orders
460(2)
Peremptory orders
462(1)
Dismissal for inordinate and inexcusable delay
463(1)
Statements of case
464(2)
Evidence
466(3)
Witness statements
469(1)
Experts
469(1)
Pre-trial hearing/conference
470(1)
No right to an oral hearing
470(1)
Bundles
470(1)
Arrangements for the hearing
471(1)
The hearing
471(2)
The decision
473(1)
Ex aequo et bono/amiable compositeur (equity clauses)
474(1)
The award and appeals
474(1)
K Example Of Arbitral Rules That Closely Follow Court Procedures
474(4)
Commencement of arbitration
474(1)
Counter-notice
475(1)
Appointment of tribunal
475(1)
Procedure
475(1)
Statements of case
475(1)
Documents and samples
476(1)
Directions
476(1)
Hearings
477(1)
Awards
477(1)
Appeals
477(1)
Key Points Summary
478(1)
29 International Arbitration
479(20)
A Introduction
479(1)
B Meaning Of 'International In Arbitration
480(1)
C Advising The Client
480(1)
D Seat
481(1)
Designation of seat
481(1)
Supervisory jurisdiction
482(1)
Place of award
482(1)
E Problems Caused By Different Systems Of Law
482(1)
F Applicable Law
483(4)
Proper law of the contract
483(2)
Law of the arbitration agreement
485(1)
Jurisdiction Regulation (Brussels Convention)
486(1)
Procedural law of the arbitration (curial law)
486(1)
Law of the place of enforcement
487(1)
Stateless arbitrations
487(1)
G Objections To Jurisdiction
487(5)
Procedures available for raising an objection to jurisdiction
487(2)
Substantive jurisdiction
489(1)
Time when an objection to jurisdiction should be taken
489(1)
Reserving client's position
490(1)
Taking a step in the arbitration
490(1)
Kompetenz-Kompetenz
491(1)
Anti-suit injunctions
491(1)
H Procedural Matters Relevant to International Arbitration
492(1)
Language of the arbitration
492(1)
Meetings and hearings
492(1)
Privilege
492(1)
Security for costs
493(1)
I ICC Rules Of Arbitration
493(2)
Request for arbitration
493(1)
Answer to the request
494(1)
ICC arbitral tribunals
494(1)
Seat of the arbitration
494(1)
Terms of reference
494(1)
Procedure prior to the hearing
494(1)
Hearings and the decision
495(1)
J Uncitral Model Law On International Commercial Arbitration
495(3)
Interpretation of the Model Law
495(1)
Commencement of Model Law arbitration
496(1)
Model Law arbitral tribunals
496(1)
Interim measures
496(1)
Statements of case under the Model Law
497(1)
Subsequent procedure
497(1)
Hearings
497(1)
Key Points Summary
498(1)
30 Arbitration Awards And Orders
499(8)
A Introduction
499(1)
B Procedural Orders
499(1)
C Interim Awards And Awards On Different Issues
500(1)
D Settlement
500(1)
E Main Awards
500(5)
Majority decisions
502(1)
Reasons
503(1)
Seat of the arbitration
503(1)
Date of award
503(1)
Place where award is made
503(1)
Remedies
504(1)
Notification of award
504(1)
Binding effect
504(1)
F Award Of Costs
505(1)
Key Points Summary
506(1)
31 High Court Jurisdiction In Arbitration Claims
507(22)
A Introduction
507(1)
B Orders To Prevent Parties Breaching Agreements To Arbitrate
508(2)
Stay of legal proceedings
508(1)
Taking a step in the proceedings
509(1)
Anti-suit injunctions
509(1)
C Appointment, Removal, And Replacement Of Arbitrators
510(1)
Extending time for beginning arbitral proceedings
510(1)
Setting aside appointment of sole arbitrator
510(1)
Failure of the appointment procedure
510(1)
Removal of arbitrators
510(1)
Relief from liability after resignation of an arbitrator
511(1)
D Procedural Orders To Assist In The Determination Of Arbitral Proceedings
511(3)
Powers to secure evidence etc available to tribunals
511(1)
Court jurisdiction on procedural matters
512(1)
Disclosure in aid of arbitration
512(1)
Interim injunctions
513(1)
Applications for procedural orders
513(1)
Exclusion of section 44
514(1)
E Judicial Review of Arbitral Proceedings
514(1)
F Preliminary Points Of Law
514(1)
Conditions to be satisfied
515(1)
Procedure on applications on preliminary points of law
515(1)
G Serious Irregularity
515(3)
Meaning of 'serious irregularity'
515(2)
Substantial injustice
517(1)
Loss of right to object
518(1)
Powers available to deal with a serious irregularity
518(1)
H Appeal On A Point Of Law
518(3)
Question of law
518(1)
No contrary agreement
519(1)
No agreement to dispense with reasons
519(1)
Tribunal asked to determine the point
519(1)
Exhaustion of arbitral appeals and reviews
519(1)
Point must arise from an award
520(1)
Appeal must be made within 28 days
520(1)
Agreement or permission to appeal
520(1)
Permission of the court
520(1)
Powers available to deal with points of law
521(1)
I Procedure In Arbitration Claims
521(5)
Application or Part 8 claim
521(1)
Time limit
522(1)
Defendants to the arbitration claim
522(1)
Courts having jurisdiction over arbitration claims
522(4)
Procedure on arbitration claims
526(1)
Hearings in arbitration claims under Part 62
526(1)
Appeals To The Court Of Appeal
526(1)
Key Points Summary
527(2)
32 Enforcement Of Settlements And Awards
529(12)
A Introduction
529(1)
B Basic Methods Of Enforcing Compromise Agreements
530(1)
C Merger Or Discharge Of Original Obligation By Compromise
530(1)
Express term reviving old obligations in the event of non-performance
530(1)
Compromise based on performance of the agreed terms
530(1)
Compromise ineffective
531(1)
D Making A Choice On Enforcement Options
531(1)
E Enforcement Of Compromises Recorded As A Contract
531(2)
Enforcement by civil proceedings
531(1)
Defences to claims for breach of compromise agreements
532(1)
Bankruptcy and winding up
532(1)
F Challenging A Settlement Recorded As A Contract
533(1)
G Enforcement Of Court Orders
533(1)
H Costs Only Proceedings
534(1)
I Enforcement Of Construction Industry Adjudication Decisions
535(1)
J Arbitration Settlements And Awards
535(2)
Negotiated settlements in arbitration proceedings
535(1)
Enforcement of domestic arbitral awards
536(1)
Recognition and enforcement of New York Convention arbitration awards
536(1)
Grounds for refusing recognition or enforcement of a New York Convention award
537(1)
Enforcement of Geneva Convention awards
537(1)
Key Points Summary
537
Appendices
Appendix 1 CEDR Model Mediation Agreement (13th edn)
541(4)
Appendix 2 Arbitration Act 1996
545(40)
Index 585
Susan Blake is a Barrister and the Associate Dean of Learning and Teaching at The City Law School, City University, London.

Julie Browne is a Barrister and Deputy Course Director of the BPTC at The City Law School, City University, London.

Stuart Sime is a Barrister and Course Director of the BPTC at The City Law School, City University, London.