Alternative Dispute Resolution , Exams of Law

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ADR

ALTERNATIVE DISPUTE

RESOLUTION

What is ‘ADR’

• (^) WHAT COMES TO MIND WHEN YOU HEAR THE TERM ADR?
• (^) HOW ARE DISPUTES RESOLVED – Through Court
• (^) Primary function is to deliver alternative services
• (^) ADR is taken to cover alternatives to going to Court where:
  • (^) There is a dispute between two or more parties;
  • (^) That the dispute relates to civil legal rights and/or duties;
  • (^) That the dispute could potentially go to Court for resolution;
  • (^) That the dispute is resolved through some other, more flexible, process;
  • (^) That the process is essentially confidential;
  • (^) That the process involves individuals, other than the parties in dispute,

who add some degree of objectivity

Why is there a need for ADR

• (^) No system is perfect – there are various ways in which a good Court system may nonetheless fail to meet the needs of all individual litigants
• (^) To save time – Court procedures are complex and lengthy
• (^) Confidentiality – Evidence rules of disclosure
• (^) Does not harm an on going relationship - Court process is essentially adversarial, ensuring that the case of each side is fully presented and effectively challenged
• (^) Avoid full trial procedures – matter may just be solved by using an expert
• (^) More personal control over a dispute resolution process and outcome – It’s the Judge’s say when it comes to litigation
• (^) Save Costs – Court process is costly
• (^) BUT NONE OF THESE POINTS MEAN THAT ADR IS ESENTIALLY BETTER THAN A COURT PROCESS

RECENT DEVELOPMENTS

• ADR is encouraged by all most all of the major firms and

business

• Government has established different Tribunals to deal with

matters, rather than allowing them to flow towards the Court

• ADR is encouraged prior to litigation

• ADR is encouraged during litigation

• Even the Courts encourage ADR

Potential Disadvantages of ADR

• (^) Increased expense – ADR is not properly conducted, it may fail and it will be an added cost
• (^) Additional delay – in case where ADR fails and parties approach the Court – time wasted
• (^) Possible reduction in outcome compared to Court judgment – client who feels he has a relatively strong case
• (^) Lack of clear and public finding – ADR cannot have its own case law – depends of precedents – some clients value public finding (they have won!)
• (^) Loss of potential strategic use of procedural steps – Interim application – strict deadlines (shuffa cases – elections, etc.)
• (^) Loss of potential advantages of evidential rules – no full disclosure
  • Litigation = all cards on the table

Role Of The Lawyer With Regard To ADR Options

• (^) Be prepared to advice orally or in writing on what ADR options might be appropriate
• (^) Assist the client in taking an informed decision – lay out strengths and weaknesses
• (^) Determine the right time for ADR
• (^) Preparing the case for ADR
• (^) Provide input to the client after the ADR process produces a potential settlement
• (^) Find a middle way so that all parties are happy
• (^) Assist with imposing the settlement

Factors influencing ADR selection

• (^) Is ADR inappropriate?
• (^) Is jurisdiction an issue?
• (^) Is a court Order necessary?
• (^) Relative cost of possible options?
• (^) Assist with imposing the settlement
• (^) How much control does the parties want?
• (^) What are the main objectives of the client?
• (^) Is a future relationship important?
• (^) Are the chances of success relevant as compared to courts?
• (^) How important might Interim Orders be?

NEGOTIATION

• (^) Styles; Strategies; and Tactics in Negotiation
• (^) Importance of Styles, Strategies & Tactics
  • (^) Substantial scope for the use of strategy and tactics – to the extent that these

can have a significant effect on the outcome of the process and how much a

lawyer can achieve for his/her client

• There is no set structure, like a court room (save for whatever is agreed b/w parties
• (^) There are no rules (save for those that come from the context of possible litigation and professional conduct) “it is vital to have a practical understand of what strategy or tactics may be used and what they may achieve – even if you don’t use them, they may be used by your opponent - you will need sufficient insight to identify what is happening around you in order to address it effectively!” - “It may be tempting to leave decision and strategy until one meets the opponent and that it will come in the spur of the moment but this would risk losing many of the benefits that strategy and tactics may achieve – Strategy and Tactics may need to be adapted as a negotiation develops but options should be planned in advance so they can be properly set up – we need best results for our client”
• (^) Style: manner of delivery – negotiator’s attitude and demeanour
• (^) Strategy: overall approach taken to achieve a good settlement
• (^) Tactic: is a specific action used to achieve a particular end.

Styles contd…

• (^) Competitive/confrontational
  • (^) Usually consists of making demands
  • (^) It is often argumentative
  • (^) Emphatic language and strong tone of voice may be used to make the opponent

uncomfortable and intimidated.

• (^) Tends to put pressure on the opponent to agree or may seek to wear the

opponent down

• (^) In extreme form it might be seen as bullying – BADMASHI !!
• (^) Such style can be very effective, specially when;
  • (^) Opponent is weak, dislikes confrontation, poorly prepared
• (^) However, can be dangerous – if sustained throughout the negotiation, may

alienate the opponent – who may well refuse to make concessions – hit a road

block

• (^) Lawyers commonly start with a competitive style but lateron develop it into

something much of a collabarative style

Strategies

• (^) Style is essentially matter of presentation, whereas, strategy is the key to success – style and strategy may coincide so that one reinforces the other
• (^) Cooperative: focusses on reaching an agreement that is adequately fair and acceptable to both sides – Concessions are expected on both sides – information is shared – negotiator tries to be open and reasonable
• (^) Characteristic Approach:
  • (^) Open by stressing the importance of settlement – try and build openness and trust
  • (^) Offer information to try and promote understanding – take the first step
  • Move relatively quickly to make and seek concessions at a reasonable level
  • (^) Explain the basis for offer to show that they are fair
  • (^) Use a conciliatory approach to try to secure agreement

• (^) Competitive or Positional: Seeks to win; getting the best possible outcome – specially as regards to financial issues; Negotiator takes a strong stance on each issue; focusing on demands rather than concessions; process is generally slow to yield/develop; Negotiator will show little or no concern in the objectives of the opponent; settlement is not seen as the main goal – negotiator will walk away rather than accepting terms seen as unsatisfactory. Strategy is adversarial – therefore may come easily to litigation lawyers
• (^) Characteristic approach:
  • Open by making strong statements about client’s position, with little or no attempt to engage constructively with the opponent
  • (^) Make high opening demands and maintain high demands for as long as possible
  • (^) Demand large concessions from the opponent
  • (^) Make few or small concessions
  • (^) Provide limited argument to support demand but demand full justification from opponent
  • (^) Give limited information but seek full disclosure
  • Seek success on every issue
  • (^) Tactics such as threats and bluffs are commonly used

Competitive/positional strategy contd…

• (^) Strengths:
  • (^) Very successful in achieving a good outcome – specially against weak opponent
  • (^) Research proves that a high starting position does tend to lead to a better settlement
  • Likely to be more successful where there are fewer issues & for money based issues
  • Where there is imbalance of power – one party’s case is much stronger than the other
  • Little chance of being exploited because fewer concessions are made
  • Strategy relatively easy to understand & use – involves blocking rather than engaging with complexity of the issues
• (^) Weaknesses:
  • (^) Most lawyers are not susceptible (be influenced or harmed) to aggressive behaviour – difficult to reach agreement
  • Can be very demanding in cases where there is an ongoing relationship b/w parties – can lead to bad feelings
  • (^) Focus on winning may ignore potential advantages of being cooperative or collaborative
  • (^) Use of pressure = high stress levels and tension = settlement less likely
  • (^) Can be undermined by a well prepared opponent – blows your weakness at the beginging and bursts your bubble
  • (^) Not good where complex issues are involved – hard stance = less information sharing or discussion = less options to explore
  • (^) Tends to emphasise differences – can increase misunderstanding

Collaborative strategy contd…

• (^) Strengths:
  • (^) Capable of achieving very good outcomes – opens process to anything of potential benefit to the client
  • Good chance of success – strategy focuses on interests of the parties going forward
  • (^) Even if there is no agreement – areas of conflict are usually decreased
  • (^) Leads to adopting techniques to share and expand resources rather than dividing them
  • (^) Rational & reasoned approach, easy to manage – provided both sides follow the strategy
  • Well prepared collaborative strategy can be successful against a competitive opponent, so long as you’re able to demonstrate your client’s potential advantages
• (^) Weaknesses:
  • Can only really succeed where both parties are collaborative
  • (^) Effective collaboration may require substantial preparation of options
  • (^) Attempts to collaborate may be defeated or exploited, by a competitive opponent, if attempts to collaborate lead to unnecessary concessions
  • May be difficult to use in court door negotiations because of time constraint or limited opportunity (less time to prepare)
  • (^) Can be exploited by a competitive opponent who pretends to be collaborative but who is actually seeking to get concessions while offering little himself
  • (^) May have little to offer where options cannot be developed

TACTICS

• (^) Tactic: type of behaviour or specific action used in a negotiation to try to achieve a particular end. Proper use of tactics is to get the best possible outcome for your client. Understanding different tactics allows you understand where and how to use them
• (^) Tactics relating to information
  • (^) Questioning might relate to facts, evidence, or objectives as seen by your opponent; can be used to probe strengths and weaknesses of other side’s case; questions can be used to put pressure, whats your take on this?
  • (^) Statements important to make a tactical statement about your case – most effective a statement should be short and clear – carefully choose your words – statements have a great effect
  • (^) Revealing information treat info as a resource and reveal it for a purpose – reveal info that shows strength of your case – make sure you know how far to reveal matters - consider not giving info unless you get info in return
  • (^) Concealing information There is no obligation to provide info, so it is quite proper to keep info confidential or to refuse to answer a question, specially if the info may weaken your case – it may have negative effects such as delay
  • (^) Reframing Opponent might over exaggerate, you reframe - one cannot be manuipulated
• (^) Tactics relating to offers and demands
  • (^) Pre-conditions and setting parameters “I could not make you an offer on this issues unless your client agrees to xyz” or “I don’t have instructions to settle on x amount”
  • (^) Authority to settle I don’t have authority to settle this issue
  • (^) Ultimatums
  • (^) Proposing additional out comes