Professional Ethics pre-reading (to include student materials for the 1st small group session)
Yüklə 0,8 Mb.
|
|
Faculty of Business and Law RESOLUTION OF DISPUTES OUT OF COURT KEY POINTS ON NEGOTIATION, MEDIATION, ARBITRATION AND OTHER ADJUDICATIVE PROCESSES The purpose of these key points is not to be a substitute for teaching or repeat what is in the text book (which you should read for yourself) but to set out the headlines of what the course will cover and what you need to consider in preparation of both your SGSs and Assessment. There will be further guided reading in preparation for your LGSs and SGSs. There are some cross references to the text book. You will need to read the text book and make your own notes as directed. DO NOT just rely on these key points as they are a very broad overview. You will need to explore all these topics in more detail for yourself. KEY POINTS ON NEGOTIATION INTRODUCTION Conducting a negotiation, or negotiating during a mediation, is a key skill for any lawyer. Negotiating is a skill which needs to be learnt and practiced just like any other skill. All lawyers will negotiate on many levels. Such processes form a key part in not only settling cases but conducting cases during litigation. Negotiation skills are considered as part of the ReDOC course, both in the context of a negotiation, but also within the context of mediation. The focus is to consider when to negotiate, how to plan for a negotiation, conducting a negotiation, the observation of professional ethics and how to conclude matters when a settlement has been achieved. Like any skill, a negotiator becomes effective through practice and experience. Guidance can be obtained through the reading of text books and literature on negotiating but the practice of “learning by doing” is crucial. An effective negotiator is one who is well prepared and has a clear understanding of the client’s objectives.
Using ADR to avoid litigation is expressly encouraged prior to and during the litigation process. This can be seen in the Civil Procedural Rules and is expressly referred to in the Pre-Action Protocols. There are many forms of ADR and negotiating is just one part of the processes. Lawyers have a duty to advise their clients of the various ADR processes available and which process is most suitable for the client’s needs. Lawyers also need to advise their clients of the consequences of unreasonably refusing to engage in ADR. Whether or not a case is suitable for a negotiated settlement depends on many factors such as the current stage of the dispute between the parties, the client’s objectives, the nature of the dispute and time scales involved. The process of ADR requires a different mindset to litigation. The emphasis is on resolving the dispute and the process allows for parties to be more in control of the outcome and to be flexible in their approach. Key advice to the client will include:-
For a brief overview of negotiation and mediation read 10.01 – 10.07.
A negotiation can take place at any time during a case. It can occur before proceedings have been issued and though out the entire process including trial. When to negotiate will depend upon the nature of the case, the state of the evidence and the client’s objectives. There are no formal procedures in place but settlement can only be agreed with the client’s express knowledge and authority. In every case, the key factor is proper preparation. This means careful case analysis. The lawyer needs to look at the facts and the law. They then need to determine the issues. Once that is established they consider the client’s objectives and the merits of the case. At that stage the lawyer will be in a position to fully advise the client on which form of ADR to use and when to embark on this process. (12.01 – 12.17). The answer to this question is therefore case specific but bear in mind that the overriding objective and pre-action protocols are designed to encourage early resolution in order to save costs. It may not be appropriate or even possible to engage in a negotiation until, for example, an expert’s report has been received but parties should be looking to negotiate as soon as it is able to do so.
Preparation and Case Analysis As mentioned above, preparation is key. It is vital to have a thorough understanding of your client’s case – the facts, the applicable law, the issues, and what the client wishes to achieve. Lawyers need to undertake a case analysis in preparation for a negotiation just as they would for providing any legal advice or preparing for court. Thorough preparation will place you in a position of strength which will further your client’s interests. You will also be in a strong position to respond to points raised by your opponent. Remember also that your reputation is crucial. As your profile and experience grows you will become recognized by your peers and clients and will develop a reputation. Ensure that it is a reputation which you are proud of. Consistently demonstrating that you are well prepared and can negotiate effectively on behalf of your client will earn you the reputation you need. Be methodical in your preparation. Prepare a written negotiation plan which you can refer back to. A negotiation plan is simply an informal document for your use which will help your preparation and conduct of the negotiation. This will provide you with a structure for your thoughts and also a structure for your negotiation. It will not be set in stone, it is not a disclosable document nor one which will be filed at court. It is therefore not a procedural requirement but it is essential to good practice (Figure 12.1). Choosing your style, strategy and tactics How you conduct yourself during negotiations is very important and needs to be considered as part of your preparation. This will include nonverbal as well as verbal conduct. Your tone of voice and body language is key to how you conduct the negotiations and the effect you wish to have. This will be the style you adopt which needs to be a deliberate decision. Your overall plan to achieving the best for your client is your strategy. You will also need to use particular tactics, possibly thought through in advance, as part of your negotiation. You will also need to be aware of the various different tactics which can be used so that you can identify these from your opponent and not be caught out by them. So, in summary:- Style – is the manner of delivery, your attitude and demeanor Strategy – is the overall approach taken to achieve a good settlement Tactics – is a specific action used to try to achieve a particular end. Advocacy and Drafting skills Advocacy is the art of persuasion. Whilst negotiating is not court room advocacy, you still need to persuade. You are putting forward points to advance your client’s position. You need not do this in an adversarial way. You do so in the way that you judge best for the circumstances of the particular negotiation. This could vary depending on the nature of the negotiation and as a negotiation proceeds but it rarely helps a client if you become too aggressive or adversarial in your approach. The point of a negotiation is to agree to a settlement which usually requires some compromise from both parties. How you present your case will directly affect this process so think through in advance what advocacy style you wish to use. Lawyers also need to call upon their drafting skills as part of a negotiation. This is most notable when drawing up written agreements. This could be agreements which follow a settlement before proceedings have been issued and need to be recorded in such a way that they form a contract. If proceedings have been issued, the lawyers will need to draft a consent order which may need to be explained to a judge but will need to lodged at court. All written agreements and consent orders need to accurately reflect the agreements reached, be realistic and enforceable. This requires careful drafting and the lawyer is best placed to do this based on their legal drafting skills.
When preparing to negotiate you need to undertake the following:-
An important part of preparation is thinking through how to deal with facts and figures. Ensure there is a clear understanding of what the facts are and make a note of where there are gaps in the facts or evidence. Anticipating arguments in advance is one of the key skills needed to be an effective negotiator to prevent being thrown off course or looking weak by the opponent.
It is critical that clear instructions are obtained from the client as to what she/he wishes to achieve. This can be tricky as the client may not be clear themselves or their objectives may change with time, or as new evidence emerges or as a result of ongoing negotiations. The golden rules are to have a clear understanding of the client’s objectives, to operate within instructions/authority and to be professionally ethical. Lawyers must not mislead their opponent in just the same way that they must not mislead the court. If a lawyer does not understand their client’s objectives, they must take further instructions so that they do. Never make assumptions. Always check that any proposed course of action is understood and agreed. Provide advice but allow the client to make the decision. Check the client’s priorities. Again, do not make assumptions. What a lawyer may see as a priority might not be the same as the client. Manage the client’s expectations. A lawyer will need to provide careful legal advice if a client has not, for example, fully understood the legal position or is allowing emotion to dictate the outcome they require. Clients will need to be advised on all aspects of a dispute together with the consequences of settling (requiring in all likelihood an element of compromise) as well as the consequences of taking a matter to trial with all the risks, costs and time that involves. Ensure the proposed settlement is workable and realistic. The client will give instructions but they need to be clear instructions and given following sound legal advice. The legal advice given will shape this. When in the heat of a negotiation a lawyer must not agree to matters which are unworkable or unrealistic. If there is any uncertainty, take further instructions. Ensure the client understands all the possible outcomes and their consequences. It is the duty of the lawyer to ensure that the client fully understands all the issues, the context and all the possible outcomes so that they can make informed decisions and clear instructions.
The most important point to note is that a negotiation is not a formal process. It is entirely flexible, can occur at any time and is not constrained by the procedural requirements of the court process. There is therefore complete discretion as to how, when and where to negotiate. Matters are negotiated on many levels. It could be as simple as a telephone call between solicitors negotiating an extension of time for serving a defence or it could be a formal meeting set up between two or more counsel, their clients and/or their instructing solicitors. Counsel may well find themselves conducting last minute negotiations at court. There is no set format for a negotiation. However, effective negotiations tend to follow a similar pattern. Broadly, this can be:-
As well as putting forward their client’s case, a lawyer needs to be able to recognize and deal with difficulties which may arise during negotiations. This will usually be where negotiations start failing as both parties become entrenched on a particular issue. A well prepared lawyer will be able to anticipate some of the potential problems and include a strategy for dealing with these as part of their preparation. If unexpected problems arise during the negotiation, having a good understanding of the various tactics which can be used to overcome these difficulties will be invaluable.
This aspect is central to a negotiation. What and when to make offers and concessions is a matter for the lawyer and the client. It requires thinking through in the planning stages and must be done with the knowledge and authority of the client. Snap decisions might also need to be made as the negotiation progresses particularly if new facts or evidence emerges and/or offers from the opponent. What and when to make demands, offers and concessions depends entirely on the nature and context of the dispute. Careful case analysis will result in an understanding of the strengths and weaknesses of the case which in turn will mean the lawyer will be able to properly consider the value of an offer or concession. Having all the facts, evidence and legal understanding at their fingertips, a lawyer will be able to respond quickly and effectively to demands, offers and concessions. This cannot be done without thorough preparation and the client’s authority. This stage of the negotiation will also involve the use of style and tactics. This is very much up to the individual negotiator, to use a particular style and make use of certain tactics to advance their client’s case. Whilst these need to be thought through in advance, there also needs to be a flexibility in approach. Different styles, strategies and tactics might need to be used as the negotiation progresses and in response to the opponents input. Demands, offers and concessions cannot be made without the express authority of the client. The lawyer needs to have a clear understanding of the boundaries within which they can negotiate. The client may give some latitude to his/her lawyer by setting parameters and allowing the lawyer to get on with it, or they may be very specific in what the lawyer can put forward on their behalf.
The lawyer needs to make sure she/he operates within the rules of professional ethics. Both Counsel and Solicitors are bound by their duties under the BSB Core Duties and SRA Principles respectively. They must not engage in conduct which is discreditable or which would diminish public confidence in the profession. Acting in accordance with professional ethical standards primarily involves not deliberately misleading an opponent during a negotiation. In particular, a lawyer must not:-
A grey area could exist when certain information is deliberately withheld as part of the tactics used in the negotiation. This might not necessarily be unethical and indeed be a valid tactic to use. The difficulty is where the line is drawn.
It is a key part of the negotiating process to accurately record any settlement so that it reflects the parties’ settlement agreement and can be enforced. This requires careful drafting. It is not good enough to stop at an oral agreement. This creates uncertainty and is extremely difficult to enforce. The agreement therefore needs to be recorded in writing, thereby creating a contract. If a party defaults on the agreement terms, the other party can seek to enforce the agreement by claiming breach of contract. How a settlement is recorded depends mainly on whether or not proceedings have been issued. If a matter is settled before proceedings are issued, the settlement terms need to be set down in writing and signed by the client and opponents. This will create a contract. There is no requirement to lodge the written agreement at court as there are no proceedings. If proceedings have been issued, the court will need to be informed of the fact that settlement has been reached so that the case can be removed from the court’s ongoing case management system. The court is informed by way of a Consent Order. This can be a straight forward order setting out the terms of the agreement, signed by both parties and filed at court. There is usually no need for judicial intervention and the lodging of a consent order is simply an administrative act. However, there are certain circumstances when judicial intervention is required to confirm that settlement agreement. A typical example is where the case involves a child and the settlement requires court approval to protect the child’s interests. A consent order can also take the form of a Tomlin Order which is a type of consent order. A Tomlin Order provides a mechanism whereby the parties set out the settlement terms in a Schedule which is attached to the consent order. The consent order is lodged at court and is a matter of public record. It refers to the Schedule which is attached. However, the Schedule is not a matter of public record and can contain terms of agreement which the parties may wish to keep confidential and/or agreement terms which are beyond the court’s jurisdiction. For example, the settlement terms could include an apology or an intention to engage in further contracts as a condition of settlement, neither of which are remedies within the court’s power to impose but which the parties wish to agree to. A consent order can be enforced in line with the CPR. A Tomlin Order can also be enforced but the parties will need to make a separate application to the court to enforce the terms of the order. What is mediation? Sources: ‘A Practical approach to Alternate Dispute Resolution’ by Susan Blake, Julie Browne and Stuart Sime, Oxford (2016) – Your course text book on the UWE BPTC ‘Making mediation work for you’ by Kate Aubrey-Johnson with Helen Curtis, LAG (2012) Key points The core principles of mediation are that it is a voluntary, confidential, without prejudice process in which parties try to reach a consensual agreement. The parties retain control of the outcome, not a Judge. Mediation has wide applicability. Mediators are facilitators who are impartial and independent. While the mediation process is flexible, most mediations follow a similar structure. Mediation encourages parties to engage with the emotional aspects of a dispute, generate creative solutions and widen the options for agreement beyond what a court could do. Mediation finds practical solutions rather than focusing on whether a party was ‘right’ or ‘wrong’. It looks to the future rather than dwell on the past. Good for maintaining relationships between parties. Lawyers have a role to play either as a trained mediator or assisting a party. What is mediation? Mediation can involve two or more individuals, groups, businesses or organisations who have had a disagreement and have been unable to resolve the issues between themselves. The parties meet with an independent/neutral third party who facilitates discussions. In most mediations the parties meet together face-to-face and are taken through the mediation process, which encourages them to reach an agreement. Mediation can be used to resolve disputes which arise in a wide variety of situations, such as: anti-social behaviour; boundary disputes; bullying in the workplace; clinical negligence; community care; construction disputes; consumer relations; contractual difficulties; divorce and separation; employment and management relationships; financial services; inheritance and trusts; judicial review; licensing; neighbour disputes; personal injury; planning issues; professional negligence; relationship breakdown; special educational needs; technology and intellectual property.
Mediation is voluntary process in which a neutral third party assists disputing parties to reach a consensual solution to their dispute. The decision to mediate is voluntary. This means that parties who attend mediation are free to leave at any time. When parties decide to mediate they are also attempting to determine the outcome themselves without the decision being imposed by, e.g., a judge, adjudicator or ombudsman. Consequently, they invest a significant personal and often financial commitment to reaching a successful outcome. At present there is no mandatory requirement to use mediation to resolve disputes in the UK. Consequently the court cannot direct that such methods be used but may merely encourage and facilitate.
Mediation is a without prejudice, voluntary and private dispute resolution process, in which a neutral person (the mediator) helps the parties to reach an agreement. Mediation is confidential, with certain exceptions. Its private and confidential nature can be as important for resolving disputes arising from family breakdowns as it is in commercial litigation. If an agreement is reached, parties decide whether or not they wish it to remain confidential. In legal disputes there are mechanisms to enable parties to enforce the agreement even where it has not been disclosed to the court. In exceptional situations the mediator may have a duty to disclose what has been said during a mediation, such as where confidential discussions lead the mediator to believe someone would face a substantial risk of serious harm, or that a criminal offence has been or will be committed.
Mediation takes the form of assisted without prejudice negotiation. The voluntary and non-binding nature of mediation means that parties are not compelled to reach an agreement and options for an agreement can be discussed without binding themselves to a particular outcome. There is no consequence on the parties if they are unable to agree (other than financial loss where the mediation is self-funded). Mediated agreements are only binding if both parties wish them to be. The description of the mediation process as being without prejudice means that anything said during the mediation cannot then be used as evidence in any legal proceedings which are being considered or already started. This allows parties to talk openly about options for agreement. Parties are able to suggest new and creative possibilities for agreement without jeopardising their chance to go (or to go back) to court if an agreement isn’t reached. A mutually agreeable outcome is often one which could not have been reached in court. In civil mediation, if parties reach an agreement it is often drafted into a legally binding document, which brings the legal proceedings to an end. The original claim or counter claim cannot then be reinstated even where the other party does not comply with what has been agreed. If properly drafted, mediation agreements are capable of being legally enforceable. In most other fields of mediation, any agreement reached is not legally binding on either party. This enables parties to work collaboratively to resolve a dispute without forfeiting their right to go to court if the agreement does not resolve the issues.
Mediation is always a voluntary process in the sense that a mediator cannot impose a settlement on the parties and is there to encourage and facilitate the reaching of a mutually acceptable settlement to the dispute. During a mediation, while the mediator assists and facilitates the process, the parties are responsible for generating options for agreement and the terms of any settlement reached. The mediator does not offer their opinion on the merits of either party’s case or seek to determine or impose any outcome. They do not make suggestions or recommend proposals for agreement (but may pass offers between the parties if requested to do so). Any agreement reached must be mutually acceptable to all parties and will have been created by them.
mediation. Parties may have a legal adviser present during the mediation (or available on the telephone), or be given the opportunity at the end of the mediation to consult a legal adviser before reaching a legally binding agreement. Creative outcomes Mediation invites parties to widen the potential options for agreement and explore new possibilities and ideas. Mediated settlements can be reached where direct negotiations have failed by getting the right people in the same room and breaking down barriers to communication. The time spent by a mediator encouraging parties to explore their own needs, as well as those of the other party, enables participants in mediation to make practical proposals. Such offers may have added-value as they may have huge significance to one party but can be provided with minimal inconvenience to the other. It may involve looking at previously unconsidered options and widening the options for agreement. The Mediator Mediators undertake specialist training. A mediator may work on his or her own or in pairs, either with a lead mediator or as co-mediators. Mediators avoid taking sides, making judgements or giving guidance. They are simply responsible for developing effective communications and building consensus between the parties. The mediator’s role is to manage the mediation process, to facilitate discussions between the parties and to work towards a consensual resolution of their dispute. Facilitative mediation – in contrast to other models of ADR such as arbitration, conciliation or early neutral evaluation (ENE) – does not involve any evaluation or adjudication by the mediator in terms of expressing an opinion or recommending any particular agreement or outcome. The facilitative model of mediation is the most commonly used style of mediation in the UK. A mediator is required to act, and be seen to act, with impartiality at all times. The mediator is a facilitator and not a judge, expert or arbitrator. Their role is to ensure that each party fairly participates in the mediation process. While the mediator remains impartial and non-judgmental, the mediator controls the mediation process and will, if required, intervene to address power imbalances or ensure fairness. The mediator is sometimes described as a ‘neutral third party’. In facilitative mediation, the mediator does not give their legal opinion or provide other professional guidance. Mediators should be independent of the parties and have no interest in reaching a particular outcome.
or on the telephone. This is an opportunity for a mediator to familiarise himself or herself with the issues and the parties and gain a greater understanding of the factors which are most significant to each side. An agreement to mediate is usually signed at the outset of the process, with some exceptions – such as some types of workplace and community mediation, where this level of formality would not be appropriate. A position statement may be drafted by each party and a core bundle of documents agreed. Most mediations involve a joint meeting between the mediator and the parties. Unless it is a telephone or online mediation, the mediator and the parties would usually meet face-to-face. The joint meeting begins with the opening. First the mediator and then the parties speak. The mediator talks about the mediation process, the mediator’s role and setting the ground rules. The ground rules are agreed by the parties, for example, only one person speaking at a time. The purpose of the ground rules is to ensure that the mediation process is fair, impartial and safe and that both parties are heard. Each party is then given the opportunity to explain the dispute from their perspective. This is described as the opening statement. It may be the first time either party has set out the issues which matter most to them, and heard the other party’s grievance. The mediator then takes the parties through a structured, facilitated discussion described as the exploration, in which the mediator asks carefully directed questions to explore all the issues and encourages parties to identify their interests. This includes identifying areas of common ground, as well as any ‘green shoots’ (such as an apology or acknowledgement) which may provide the basis for an agreement. The stages of the discussion start with exploring the issues; this includes identifying the underlying interests which enable parties to generate options for agreement. Once the parties have a good understanding of the areas of agreement and disagreement, they are ready to start making offers and counter-offers, working towards an agreement. Many mediators choose to conduct the entire process in a joint meeting. Civil mediators often begin with a joint meeting (sometimes described as a plenary) and then move the parties into separate rooms. The mediator then speaks in private with each party and conveys messages back and forth (sometimes described as caucusing or shuttle mediation). This could be considered as a form of bargaining. When appropriate, the mediator may encourage parties to continue with a joint meeting in order offers or concessions to be made formally. This model enables a process of open and frank discussion with the mediator without compromising a party’s legal case. The mediator encourages the parties to generate their options, offers and concessions. In mediations where no lawyer is present, the mediator will usually help the parties make the written record of any agreement reached. Where lawyers are present the agreement is drafted by the legal representatives. All mediations share the same objective – to reach an agreement, if one is possible. But where an agreement is not reached, the process may still assist by narrowing the issues and improve communication between the parties so that they are able to resolve the dispute between themselves. Variations to the process There are number of variations to this overview of the mediation process: Parties: There may be two or more parties. Mediators: There may be one mediator, two co-mediators or a lead mediator working with an assistant mediator or co-mediators. Number of meetings: The most common format is for the mediation process to take place on one day (for a fixed period of time), although pre-mediation meetings may take place beforehand. Mediations can last several days. Family mediation takes place over a series of up to six meetings. Telephone and online mediation: In addition to face-to-face meetings, mediation can take place over the telephone or online. Facilitative Mediation The mediator’s role is to manage the mediation process. The mediator may challenge and test each party’s beliefs and positions but does not express an opinion on the strengths and weaknesses of the case or impose solutions on the parties. The mediator plays no active role in determining the outcome. Parties decide for themselves a workable agreement. The key features of facilitative mediation are that the mediator conducts the process and helps the parties generate their own consensual solutions.
focused towards finding an outcome for both parties which addresses their ongoing interests and needs. This does not mean that liability or responsibility is unimportant or not addressed, rather there is a subtle and important shift of emphasis away from fixed determinations of right or wrong towards a more fluid solution-focused approach to resolving the dispute. While mediation is sometimes criticised for failing to hold parties to account or resolving liabilities for past events, it can be effective at formulating a pragmatic solution for the future. The Role of the Lawyer Mediators are not exclusively lawyers, but lawyers bring a lot of skills to the process. Not least is an awareness of the court process, timescales and costs. Lawyers can make very good Mediators but they must forget about traditional concepts associated with litigation – blame, innocence, right and wrong. Litigation by its nature looks backwards for fault whereas Mediation is firmly focussed on solutions and the future. Lawyers also have an important role to play acting for clients; the key word being advice at all stages. They can draft position statements, write and deliver opening statements, advise on offers, draft settlement agreements. KEY POINTS ON ARBITRATION Note references to the textbook have been included to assist you when revisiting these key points in the Autumn term
The essence of arbitration is that the parties to a dispute agree that their dispute will be resolved by a third party whom they choose: the arbitrator. The decision of the arbitrator then binds the parties and is enforceable at law like a court judgment. Modern arbitration originated in certain specialised trades where the nature of the disputes meant that it was more efficient to have them decided by a commercial person (frequently another trader) who was familiar with the language and customs of that trade. The less efficient alternative would have been to present the dispute to a judge with the extensive assistance of experts. Arbitration is thus frequently used in contexts such as shipping and commodity trading. It also has much wider applications and is used in a variety of other circumstances, from consumer disputes to international commercial disputes. Arbitration differs from litigation in that many aspects of the arbitration process are governed or influenced by the agreement of the parties. Thus choice of the arbitrator (either directly or through an appointing body chosen by the parties), choice of the rules governing the arbitration, choice of the type of procedure adopted and choice of where the arbitration is to be conducted may all be made by the parties. If the parties co-operate and make sensible choices, arbitration can be tailored to the requirements of the particular dispute and will therefore work rapidly and efficiently. Arbitration offers a significant advantage over litigation in that it is, generally, a private process. Hearings are held in private and awards (which are the equivalent of judgments) are published only to the parties. However, some court hearings arising out of arbitrations may be held in public. Like litigation (but unlike mediation) arbitration is an adjudicative process. It therefore offers finality. Indeed, it is the only way of achieving a result which can be enforced through the courts apart from commencing litigation. However, arbitration is not always, or necessarily, cheaper or quicker than litigation. The procedure adopted may prove to be very similar to full-scale litigation and, in addition to the costs of such a process, the arbitrator and accommodation must also be paid for. For the purposes of the ReDOC course, we will primarily consider arbitration in a domestic context and the English law relating to arbitration, which is mainly to be found in the Arbitration Act 1996. This law applies to arbitrations whose ‘seat’ (or juridical base) is in England and Wales or Northern Ireland. Those intending to work in, for example, the area of shipping law, may well need to become familiar with arbitration law in both the English and international contexts. Arbitrations conducted internationally are often subject to different systems of law governing, for example, the agreement to arbitrate, the procedural aspects of the arbitration and the substantive dispute.
The Arbitration Act 1996, s1 sets out three general principles behind arbitration
Arbitration is an option when you need a litigation type process where procedural stages are needed to tease out the evidence and the dispute but you want to preserve confidentiality and autonomy when it comes to deciding on what the procedure should be and who is to arbitrate the dispute – it is essentially bespoke litigation. It may be slightly less adversarial that litigation – as the parties are more involved in setting the terms of reference and the procedure. The tribunal had a duty to follow the rules of natural justice.
There are a number of ways in which the procedure of an arbitration can be matched to the dispute and so it is important to consider the facts and issues in the dispute to decide on how to shape the arbitration. There may or may not be a hearing, it could be a short form arbitration, the arbitration may be combined with another process – Med-arb, it could be very rough and ready – a look ‘n’ sniff arbitration. See further 26.63-26.73 and 28.26-28.30 and review the different types of arbitration and think about when one type of process may best fit a particular dispute.
The source of the referral to arbitration is agreement between the parties either before or after the dispute has arisen but this is supported by the courts and statute via the Arbitration Act 1996. Although the parties can devise their own procedure, the Act sets out a number of mandatory and non-mandatory procedures to govern the process. The mandatory provision cover the essential elements needed for an effective arbitration and the non-mandatory provisions are more flexible but provide a guide to effective procedure. See tables 26.2 and 26.3 for a list of the mandatory and non-mandatory provisions.
As arbitration is based in contract the courts can get involved in ensuring that parties stick to an agreement to arbitrate a dispute. Often an arbitration clause is included in the contract that brings the parties together before the dispute has arisen. The arbitration clause is considered separate from the rest of the contract and so will survive even if the rest of the contract is invalid. The court will grant orders preventing a party from breaking an agreement to arbitrate or can appoint arbitrators in the event the parties cannot agree. The court can also remove arbitrator and stay proceedings to allow arbitration to take place. The court may also get involved where the arbitrator has made procedural orders that need to be enforced and can grant interim remedies to preserve the status quo if this is necessary.
The arbitral tribunal has jurisdiction over the dispute that is within the terms of reference to the tribunal and so it is important that the arbitration stay contained within the terms of reference. The arbitration process starts with the reference made by a party and clear criteria must be met;
Thereafter, there are a range of procedural approaches – see 28.10. The procedure is linked to the type of arbitration that may work best for the dispute. Do not assume that there has to be a hearing but, amongst all of the different forms of ADR considered, arbitration is more likely to follow a litigation type procedure with
What is different from litigation are the initial stages shown in italics. The arbitrator has the power to make procedural orders e.g. an interim payment and to give directions on evidence e.g. on whether expert evidence is needed or document should be disclosed. As you can see from the list above, the parties, together with the arbitrator set the timetable for the process. The parties can agree or the Arbitration Act 1996 sets out default provisions for what happens if there is a procedural default. This can result in a peremptory order which is similar to an unless order (made under the Civil Procedure Rules) i.e. take a step or else there is a sanction. The hearing This is not automatic and an award can be made without an oral hearing. If there is to be a hearing, then the parties and the tribunal should consider the form it is to take and how the evidence will be presented;
Note: the arbitrator does not have the power to compel witnesses to attend, if this needed, an application must be made to the court. The award This must be made in writing with reasons for the award. The award can include interest and costs and is final and binding (unless otherwise agreed). The award must be served on the parties and the arbitrator can withhold the award if his/her fees are not paid. Both fees and costs can be apportioned between the parties and there may well be submissions on what costs are recoverable and who should pay what to whom – much like the summary assessment procedure under the CPR.
Challenges Once the arbitrator has given a decision there are limited grounds for a challenge;
Review 31.45 - 31.60 on the meaning of serious irregularity. If the court agrees there has been a serious irregularity, it can;
Appeals An appeal is only possible on a point of law and the parties can exclude this by agreement. The parties must identify the question for law arising from the decision and not confuse it with findings of fact. The appeal must be made within 28 days of the award s 70, Arbitration Act 1996 and an application for permission must be made. This is a written application and will usually be determined on the papers with any oral hearing time limited. See 31.74 - 31-80 for the grounds on which permission can be sought and an appeal allowed. If the appeal is allowed the court may;
Any claim arising from the arbitration is commenced as a Part 8 claim in the High Court. Yüklə 0,8 Mb. Dostları ilə paylaş:
|