Dawn Goodman explores how mediation can work well in trust and estates disputes Ironically, some of the qualities of trust and succession disputes that make them so difficult to settle may make mediation among the most successful ways of achieving a consensual outcome. Trust and estate disputes can be among the most unpleasant and difficult …
Continue reading "Alternative dispute resolution: Seeking consensus"
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Wills & Trusts Law Reports | Spring 2020 #178The claimant made an application under the Inheritance (Provision for Family and Dependants) Act 1975 as a widow of the deceased. She wanted the parties to engage in Early Neutral Evaluation (ENE), but the defendant refused to do so. The claimant asked the court to order an ENE under CPR r3.1(2)(m).
At first instance, Parker J made it clear that she believed that an ENE would be of benefit to the parties, but declined to order this. The claimant appealed against the decision not to order an ENE.
The single issue on appeal was whether a court can order an ENE in cir...
Eleanor Scogings assesses the relationship between mediation and litigation ‘The CEDR rules provide for the selection of the mediator and a court could determine by reference to objective criteria whether the parties had engaged in mediation and whether the dispute remained unresolved.’ In Ohpen Operations UK Ltd v Invesco Fund Managers Ltd [2019], the High …
Continue reading "ADR: Once more unto the settlement"
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Sam Hayman advises on where he sees an emerging market for ADR ‘Now more than ever, the judiciary has a key role in progressing the uptake of ADR.’ Mediation in costs proceedings is a relatively contemporary option. There was a very apparent emergence of such options following the introduction of the Jackson reforms and this …
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Sapna Garg discusses the recent interim report by the Civil Justice Council Working Group on ADR ‘Perhaps the most significant recent development in this debate is the digital awakening that has occurred in the judicial system and the recent realisation that technology can potentially dispense with a myriad of administrative hurdles prevalent in a non-digitised …
Continue reading "ADR: Tough love – an obligation to mediate?"
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Neil Jamieson examines the increasing significance of mediation ‘While mediation remains a voluntary process which no party can be compelled to engage in, there is now is an undeniable onus on parties to attempt alternative dispute resolution if they wish to avoid costs sanctions.’Would-be litigants certainly cannot be criticised for approaching the prospect of bringing …
Continue reading "ADR: Mediate and be damned"
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John Sykes looks at the myths and reality of mediation and the public sector ‘Whereas a judgment is public and invariably receives widespread attention, a mediated settlement will usually remain confidential and be better suited to shielding the authority from public criticism.’I first represented a client in a mediation in 1999. It was all about …
Continue reading "ADR: Oil on troubled waters"
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Julianne Hughes-Jennett and Sarah Baddeley analyse Advocate General Wathelet’s opinion in Gazprom ‘The arbitral tribunal is not subject to the Brussels I Regulation and is not bound by the principle of mutual trust applicable between the courts of the member states.’The relationship between arbitration and litigation has, for a number of years, caused both the …
Continue reading "ADR: Run aground – is this the end of the road for West Tankers?"
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Frances Bailey outlines options and steps that may be taken by the courts to encourage parties to attend non-court dispute resolution ‘The court’s powers are limited in that it cannot force either party to engage in dispute resolution; it can simply adjourn the proceedings to enable them to obtain information.’ Resolution’s third annual Family Dispute …
Continue reading "Non-Court Dispute Resolution: Alternative routes"
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Stuart Dutson reports on a recent study on the continued popularity of judicial resolution ‘With general counsel working hard to stay out of court it is perhaps surprising that over one third of all large cases are still being resolved through litigation and 18% through arbitration. What is more, in the majority of cases businesses …
Continue reading "ADR: Taking the high road"
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