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Chapter

Cover Cases and Materials on Constitutional and Administrative Law

13. Statutory Tribunals  

This chapter examines the rationale for giving the task of resolving disputes to statutory tribunals rather than courts. It also describes the structure and organization for most tribunals and how they conduct dispute resolution adjudication. The hearing technique of redress is considered alongside administrative review, particularly the use of mandatory reconsideration in social security to illustrate the advantages and disadvantages of different methods of dispute resolution. Their place in a staged approach, proportionate dispute resolution, is outlined and the possible benefit of conceiving administrative justice as a system with a focus on users is raised as well as some of the issues raised for users by the adoption of digitalization. An outline is given of the oversight activities conducted by the non-statutory Administrative Justice Council.

Chapter

Cover A Practical Approach to Effective Litigation

3. Dispute Management, Project Management, and Risk Management  

This chapter first considers the project management approach to resolving civil disputes. Such an approach involves following a single overall plan from the first consideration of the legal dispute up to trial. However, the fact that most cases will not in fact reach trial, and that reasonable use of alternative dispute resolution must now be made at all stages, means that any plan must be sufficiently flexible to include review, and that review needs to include options as to process. The chapter then turns to the process of case evaluation, where lawyers value what a case is worth, assess the chances of winning a case, and conduct a cost-benefit analysis. Also discussed are the importance of proportionality in the conduct of litigation and managing and reducing the risk of losing a case.

Chapter

Cover The English Legal System

19. Alternative Dispute Resolution  

Alisdair A. Gillespie and Siobhan Weare

This chapter considers alternative dispute resolutions (ADR), which are ways that a dispute can be settled outside of the court process. The chapters considers the growth of ADR and how the courts now require litigants to consider ADR before commencing legal action. The courts have wide powers to encourage ADR and this chapter considers these powers and why the courts try to encourage ADR. The key forms of ADR are then presented, together with an analysis of their strengths and weaknesses.

Chapter

Cover The English Legal System

19. Alternative Dispute Resolution  

This chapter considers alternative dispute resolutions (ADR), which are ways that a dispute can be settled outside the court process. The chapter considers the growth of ADR and how the courts now require litigants to consider ADR before commencing legal action. The courts have wide powers to encourage ADR and this chapter considers these powers and why the courts try to encourage ADR. The key forms of ADR are then presented, together with an analysis of their strengths and weaknesses.

Chapter

Cover A Practical Approach to Alternative Dispute Resolution

1. Introduction  

This introductory chapter provides a background on alternative dispute resolution (ADR), which refers to the full range of alternatives to litigation that might be available to a lawyer and client for resolving a civil dispute. In 1998, ADR was formally acknowledged by the Civil Procedure Rules (CPR) as being potentially relevant to all civil actions. Indeed, there is strong government support for the use of ADR in providing cost-effective options for civil dispute resolution. Over the last few decades there has been fast and increasing growth in the use and variety of forms of ADR. ADR options offer many potential advantages in terms of saving time and costs, providing confidentiality, and increasing client control. However, ADR also has some potential disadvantages, especially if it is not used appropriately, and some of the strategic opportunities available in litigation may be lost.

Chapter

Cover A Practical Approach to Alternative Dispute Resolution

4. Funding ADR Procedures  

This chapter discusses the issue of funding alternative dispute resolution (ADR) procedures. Costs are a major motivation for undertaking ADR, but the costs position can be quite complex. Indeed, the separate elements of costs must all be considered. It is government policy to make more use of ADR, including online ADR, for lower-value cases so that dispute resolution is cost effective. Although a process like arbitration can be expensive, most ADR processes are relatively inexpensive, and information on costs is quite easily available from ADR providers. Ultimately, it is important for the lawyer to make an overall analysis of the financial position and risks to assist the client in taking an informed decision about litigation and ADR options. Costs may be considered as part of a negotiated or mediated settlement.

Chapter

Cover A Practical Approach to Alternative Dispute Resolution

5. Online ADR Options and ODR  

This chapter examines online alternative dispute resolution (ADR) options and online dispute resolution (ODR) options. The use of information and communication technology (ICT) in relation to all forms of dispute resolution is a major area of current development. In saving time and money in resolving disputes, ICT has much to offer, especially in relation to lower-value cases, and this is seen in the growing use of online portals and software-based support for dispute resolution. Indeed, software is already used successfully to mimic some negotiation and mediation processes, and this is likely to develop further. ODR comprises systems designed to work online that do not necessarily fit within existing ADR definitions. International and cross-border ODR is now being developed, especially to support e-commerce and deal with lower-value disputes.

Chapter

Cover Business Law

4. Dispute Resolution for Businesses  

This chapter identifies courts and tribunals as the place where the laws discussed in the previous chapters are interpreted and utilized in the legal system. The jurisdiction of the courts and the personnel within them are described and a comparison is drawn between these forums for the administration of justice. It is important for those in business to be aware of the work of at least one tribunal—the Employment Tribunal, as many employment-related disputes ultimately end up here. Also, the courts in the English legal system, and the increasing use of alternative dispute resolution mechanisms, are relevant to businesses as they are used either to settle disputes or to avoid them altogether. Because the term ‘court’ is difficult to define in any practical sense, the chapter uses a description of what a court does.

Chapter

Cover International Law

10. Jurisdiction  

Christopher Staker

This chapter focuses on the principles of international law that govern the right of States to apply their laws to conduct and events occurring within or outside their own territories; the resolution of disputes arising from overlapping jurisdictional claims; and the problems of enforcing national laws. The discussions cover the meaning of ‘jurisdiction’; the significance of the principles of jurisdiction; doctrinal analysis of jurisdiction; the territorial principle; the national principle; the protective principle; the universal principle; treaty-based extensions of jurisdiction; controversial bases of prescriptive jurisdiction; types of jurisdiction; limitations upon jurisdiction; inadequacies of the traditional approach; and the fundamental principle governing enforcement jurisdiction.

Chapter

Cover A Practical Approach to Alternative Dispute Resolution

3. Factors Influencing the Selection of an ADR Option  

This chapter identifies the factors influencing the selection of an alternative dispute resolution (ADR) option. A lawyer has a general professional duty to give legal advice on ADR options, and there are identifiable points in a case and in litigation where this is particularly important. It is good practice to have a coherent strategy as regards potential use of ADR to resolve a dispute. There are many factors that may be relevant to the use of ADR, and to which form of ADR is most appropriate, including cost, the nature of the dispute, and the objectives of the parties. It is important to select the ones relevant to each case. The chapter then considers the various concerns which may be expressed in relation to ADR, as well as the various ways to encourage a reluctant opponent to use ADR.

Chapter

Cover Legal Ethics

11. Alternative dispute resolution  

This chapter examines the ethical issues raised by alternative dispute resolution (ADR). It first looks at the process of negotiation, which is the way in which lawyers resolve most disputes. It then considers other forms of ADR, including mediation and, briefly, arbitration. The chapter highlights the advantages and disadvantages of these processes. There are particular concerns where one party is in a stronger bargaining position, for example in a family case which has involved domestic abuse. There is also much debate over the role a mediator should play, andin particular over whether a mediator should take a neutral role or persuade the parties to reach what they regard as a fair settlement. It also considers what attracts clients to use these forms of dispute resolution.

Chapter

Cover Public Law

18. Administrative Justice: Tribunals and Ombuds  

This chapter considers the main ways in which disputes between individuals and public bodies are resolved outside the court system in what is widely referred to as the landscape of ‘administrative justice’. The discussions cover initial decision-making; accessing the administrative justice ‘system’; and the two pillars of administrative justice—tribunals and ombuds.

Chapter

Cover Legal Ethics

10. Alternative dispute resolution  

This chapter examines the ethical issues raised by alternative dispute resolution (ADR). It first looks at the process of negotiation, which is the way in which lawyers resolve most disputes. It then considers other forms of ADR, including mediation and, briefly, arbitration. The chapter highlights the advantages and disadvantages of these processes. It also considers what attracts clients to use these forms of dispute resolution.

Chapter

Cover Legal Systems & Skills

12. Negotiation and mediation  

Scott Slorach, Judith Embley, Peter Goodchild, and Catherine Shephard

This chapter provides guidance as to how to conduct a negotiation and a mediation, and explains the difference between the two. It covers how, why, and when a law student might require these skills, and how to further develop the skills for professional practice. Advice is given about how to prepare effectively for a negotiation by drafting a negotiation plan. There is consideration of the different approaches to conflict and uncertainty and how they impact negotiation style. The BATNA is defined and discussed. For mediation, a flowchart is provided to guide students through the mediation process. The growing trend towards online dispute resolution is covered.

Chapter

Cover A Practical Approach to Effective Litigation

4. ADR, Settlement, and Part 36 Offers  

In recent years alternative dispute resolution (ADR) has evolved from being a fallback in relation to litigation into an important alternative that may be the preferred option in some cases. This chapter outlines the interface between litigation and ADR, and puts litigation into the context of settlement options. ADR is only a complete alternative to litigation where a full adjudicative option such as arbitration or expert determination is used. In most disputes it is more likely that a case will move between litigation and ADR processes, or be subject to both at the same time where an offer has been made and remains open, but the litigation process continues. The chapter discusses the main types of ADR and their fit with litigation; framing an attempt to settle; drawing up terms of settlement; and making Part 36 offers, especially when costs are a major concern in litigation.

Chapter

Cover English Legal System Concentrate

8. The Civil Justice System  

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. This chapter discusses the civil justice system. Civil justice is concerned with the private dispute between individuals in the absence of the state. It seeks to solve disputes before they have had a chance to enter the legal structure, through the use of alternative dispute resolution (ADR). Civil justice follows a similar pattern to its criminal counterpart; however, some of the procedural rules—specifically those relating to evidence—appear to be much more relaxed than in the criminal justice system. During the process of civil justice, a number of issues may arise which would bring the procedure to an end. These issues include ADR, through which parties may decide to settle the case at any point; default judgment, wherein judgment may be entered against a defendant at any point in the proceedings; and offers to settle, known as ‘Part 36 Offers’, in which an individual makes an offer to another without prejudice.

Chapter

Cover A Practical Approach to Alternative Dispute Resolution

19. International Mediation  

This chapter evaluates international mediation. Mediation is particularly effective as an alternative dispute resolution (ADR) process for resolving international disputes because it enables linguistic and cultural differences to be managed and respected to a greater extent than is possible in court proceedings. Moreover, it avoids complex arguments about which court has jurisdiction to determine the dispute and which system of law applies to the dispute. The chapter then looks at the EU Directive on mediation in civil and commercial matters, which sets minimum standards for mediation in EU countries. The United Kingdom has implemented the Directive by adding to the suspension of the operation of the limitation period while the parties are attempting mediation in a cross-border dispute, and providing for mediation settlement agreements in such disputes to be made orders of the court for ease of enforcement by enabling parties to apply for a Mediation Settlement Enforcement Order (MSEO).

Book

Cover A Practical Approach to Effective Litigation
A Practical Approach to Effective Litigation analyses the key skills needed to handle a case effectively. At a time of rapid and wide-ranging change in the delivery of legal services, the current edition reworks the text to take into account the implications of the implementation of the Jackson Review, and to see effective litigation clearly in the context of concerns about funding, case management by the court, costs, and the growing use of alternative dispute resolution. The volume has a strong focus on the needs of the legal practitioner, the decisions to be taken at each stage of a case, and the criteria to apply in making those decisions. This is all securely based in references to relevant Civil Procedure Rules and decided cases, with checklists and commentary to assist in the project management of a case. The work also focuses on the skills a lawyer needs to work effectively. This includes skills in dealing with a client, drafting legal documents, and presenting a case in court. Throughout the work the emphasis is on demonstrating how to use law effectively, how to develop a case, and how to present persuasive arguments. Lawyers operate in an increasingly complex environment, faced with challenges in funding a case, in managing a case to avoid sanctions, and in using complex rules to best effect. The work addresses the use of legal knowledge and skills within this rapidly changing context, bearing in mind not least that the pace of change is likely to continue with the developing use of IT, and the widening use of alternative business structures.

Chapter

Cover A Practical Approach to Effective Litigation

6. Financing Litigation  

This chapter focuses on funding options for litigation. Expense is one of the biggest issues relating to litigation. The high cost of litigation has perhaps been tolerated to some extent out of respect for the expertise of lawyers and because of problems in finding a consensus on how litigation is best funded. The detailed work of the Jackson Review of Civil Litigation Costs has provided a strong basis for development, and there have been numerous expressions of judicial concern with regard to the high level of costs. The chapter begins by considering the sources of legal expense, the parties that bear the expense, and the problems that arise with regard to the expense of litigations. It then discusses funding options for litigation, including self-funding, insurance, conditional fee agreements, damage-based agreements, third party funding, and public funding. It also presents options for funding alternative dispute resolution (ADR).

Chapter

Cover Information Technology Law

14. Branding, trade marks, and domain names  

This chapter examines the role of trade marks in the creation of brand portfolios online, including internet addresses or domain names. It first provides an overview of branding and trade marks in the global business environment, trade mark characteristics, and the distinction between registered and unregistered trade marks, and then looks at domain names as address tools and brand identifiers. The chapter also considers early disputes over rightful ownership of trade marks and domain names, examining the development of cybersquatting case law before the UK and US courts. It discusses the allocation of new generic top-level domains under the New gTLD procedure and examines the legal safeguards for trade mark holders under the procedure. The primary focus of the chapter is the Internet Corporation for Assigned Names and Numbers (ICANN) Uniform Domain Name Dispute Resolution Policy and its domestic counterpart in the UK, the Nominet Dispute Resolution Service.