LAW3840

Worksheet 1
ADR
An Overview of ADR

What is ADR?
- a group of processes through which conflicts are resolved outside of formal litigation
procedure
- Covers a variety of fora, that are nonstatic and continue to expand as society gains better
appreciation for the nature of disputes.
ADR Spectrum
- Describes the range of different fora for resolving disputes
- Arranged according to the level of control disputants have over the process
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Dispute Prevention
Negotiation
Mediation
Ombudsman
Private Mini-Trial
Judicial Mini-Trial
Early Neutral Evaluation (ENE)
Settlement Conferencing
a. TT Practice Direction, ADR Pilot Project (Jan 18 2013)
9. Mediation/ Arbitration
10. Arbitration/ Mediation
a. Glencot Development and Design Co. Ltd v Ben Barret v
Son (Contractors) Ltd.
11. Arbitration
12. Administrative Hearing
a. Seaga et al v Isaac et al
13. Trial, Including Case Mgmt. & Pre- trial conference

Third party:
Formality of procedure:
Relationship:
Cost:
Time:
Focus:

Increasing third party involvement

Processes become increasingly formal
Potential for relationship damage increases
Expense increases
Processes take longer to reach resolution
Increased focus on rights as opposed to interests

LAW3840

Worksheet 1
ADR
An Overview of ADR

Fiadjoe Chapter 1
ADR Benefits:
(a) speed;
(b) choice and expertise of impartial neutrals;
(c) informality and flexibility;
(d) privacy;
(e) economy;
(f) finality;
(g) diversity and adaptability of ADR;
(h) recognition of the needs of the parties;
(i) win-win situation;
(j) involvement of the parties in creating imaginative solutions;
(k) savings in public expenditure;
(l) private savings in time and energy;
(m) retention of beneficial business and personal relationships;
(n) shortening of court dockets;
(o) more efficient legal systems;
(p) qualitative improvement in the delivery of justice; and
(q) increased participation and access to justice.
Criticisms of Litigation
(a) the adversarial nature of the trial;
(b) delay;
(c) expense;
(d) court overcrowding;
(e) rising demands on scarce public resources;
(f) escalating legal and emotional costs;
(g) an increasingly long, arduous litigation process; and
(h) inefficiency and popular frustration with litigation.
Origins of ADR
Long before WWI
Indigenous Communities
In traditional societies consensus building was necessary part of dispute resolution
Cicero more than 50 BC on Arbitration
When we go to court we know that we are going to win all or lose all. But we go
to arbitration with different expectations that we may not get all we want but we
will not lose everything.
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LAW3840

Worksheet 1
ADR
An Overview of ADR

Helen Alves of TT on Mediation

Mediation has had a long and varied history, and has traditionally been used as a
means of dispute resolution and as a means of ensuring in several cultures, that
societal cohesion was maintained in the face of individual and communal
conflicts.
Panchayat in Indian Communities
Panchayat Panchayat which means, the settlement of dispute by the elders within
the East Indian Community
order upheld by TT High Court
One of the main driving forces towards ADR is public dissatisfaction with litigation clients being
left out of the decision making process once they have instructed a lawyer, complete loss of
control when they turn their claim to the lawyer, client intimidation by the formality of the
adjudicative processes. Also, there is the not uncommon feeling that the burning issue, which
originally belonged to the disputants, becomes detached from them once it is placed in the hands
of the legal system. In the process, the original personal facts of the case are reconstructed to fit
the relevant legal rules.
ADR seeks to answer; What is the best way for people to resolve their disputes?
The Nature of Conflict
What is conflict?
Conflict has been defined to include a clash of opposed principles, statements or
arguments.
A disagreement through which the parties involved perceive a threat to their needs,
interests or concerns
(Conflict is) The basis of a resolution process
An integral part of human interaction
Diverse
Complex
Beneficial
Focuses attention on problems that need to be solved
Clarifies how change is needed
Clarifies what is important to us and others
Strengthens relationships
Encourages new ways of thinking
Adds spice to life
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LAW3840

Worksheet 1
ADR
An Overview of ADR

Conflicts vs Dispute
While conflict is inevitable, disputes need not be.
Dispute are a specific type of conflict involving justiciable rights
Disputes occur when we are unable to manage conflict properly.
But conflict need not be so narrowly construed: it can have productive consequences too.
If managed properly, conflict can be harnessed into constructive change. If mismanaged,
it can lead to destructive consequences, threaten relationships, systems and institutions. It
is therefore in the interest of societies that aspire to be well managed to develop processes
and institutions for the resolution of conflict. Such processes generally revolve around
negotiation, mediation, arbitration and adjudication.
Causes of Conflict
Economic
Limited resources e.g. moneyValue
Conflicting convictions
Unmet needs
Basic physiological needs unmet
Stress
Misunderstandings
Personality conflicts
Power struggles
Barriers

Psychological (trust, emotion, communication)

Entrenched positions (personality, perception)
Tactical/strategic barriers
Power differentials
Organizational and institutional barriers (poor structures)

Responses
Hard

Soft

Threats
Anger
Aggression
Withdrawal
Ignoring
Denial
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LAW3840

Worksheet 1
ADR
An Overview of ADR

Principled
Understanding
Respect
Resolution
Dispute Resolution
Different solutions for different types of disputes
Be aware of Submerged Issues
Deeper reasons for dispute, which affect parties attitudes and the manner of
resolution
Financial and economic implications
Hidden agendas
Cultural/Personality differences
Emotional factors
Personal prejudices or Perception of fairness/justice
Symbolic significance
The ADR Spectrum
Dispute Prevention
Agreeing to ADR system and process in an of itself
Establish non-adversarial processes for resolving potential problems
Establishes non-adversarial atmosphere
Dispute resolution Training
Bonus incentives for ADR system rule compliance
Proper Risk Allocation
Realistic and fair risk assessments help to avoid disputes, claims etc.

Negotiation
Three styles
Principled
Hard (Competitive)
Soft (Collaborative)
Non Binding
Disputants may represent themselves or be represented by agents
Disputants have control over the process and outcome
Disputants communicate to come to a mutually agreeable solution

LAW3840

Worksheet 1
ADR
An Overview of ADR

Mediation
Impartial third party/ mediator/ neutral, facilitates the negotiation process between
disputants
Two types:
Facilitative
Interests-Based
Evaluative
Rights-Based
Not permitted by TT Mediation Act
Non Binding
Disputants retain control over the substantive outcome
Ombudsman
Investigates complaints against public authorities
Non-Binding recommendations are provided
Powers of an Ombudsman set out in the laws of a Country
TT Ombudsman Act Chap. 2:52
Private Mini-Trial
C
omplex commercial disputes between companies
S
ummary presentation of each disputants case before a panel consisting of
decision-makers and a neutral third party
The decision makers had no personal involvement in the dispute
Following the presentations, the decision makers negotiate with the assistance of the third
party neutral

Judicial Mini-Trial
Often used in the US
The judge hears summaries of the case and points out strengths and weaknesses to the
parties
The neutral/judge will not be the judge if the case goes to trial

Early Neutral Evaluation

Assessment of the dispute by a respected neutral
Combination of evaluative mediation and arbitration

LAW3840

Worksheet 1
ADR
An Overview of ADR

Provides an opinion on the likely outcome if the case should proceed to trial or
arbitration.

Settlement Conferencing
A feature of the TT Practice Direction- ADR Pilot Project (Jan 18 2013)
A non-adversarial, co-operative decision-making process in which a Settlement Officer
assists the parties in resolving their dispute
TTPD Sections
12- Referral of Matter to SC
13- Procedure for SC
14- Selection of SO and scheduling
15- Attendance at SC
16- Conduct of Parties
17- Time within which SC is to be conducted
19- Reporting the results of SC
21- Failure to Comply with TTPD
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Referral of Matters for Settlement Conferencing
TT Practice Direction Sec. 12
Civil Court Matters are randomly selected for participation in the Pilot
Project by the docketed Judge, Master or Registrar
Matters can be referred to settlement conference at any stage of the
proceedings with the consent of the parties
Settlement Officers (SOs)
There are 12 SOs approved by the Chief Justice and include Judges, a Master, and
2 Senior Counsels who received special training.
They assist parties to reach a satisfactory resolution to their dispute
Withdrawal from Settlement Conferencing
TTPD Section 16 (7)
Parties can withdraw from conference as they like but must say why and give the
settlement officer a chance to address the issue first
Outcome
TTPD Sec. 16 (11)
Any agreement must be recorded in writing and signed by parties, witnessed by
the SO
Agreement obtained at a settlement conference is entered as a consent order in the
High Court matter.
Failure to comply with Settlement Conferencing Rules
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LAW3840

Worksheet 1
ADR
An Overview of ADR
TT Practice Direction Sec. 21
Penalties/ Costs apply (judges discretion) if:
Failure by parties to compile brief (according to TTPD Sec. 13)
Failure to attend settlement conference without notice within 30
minutes of the appointed time

Arbitration

A third party neutral or odd-numbered panel of neutrals

Panel renders a decision based on the merits
Parties maintain control over the design of the arbitration process
Parties set out the parameters for the process and the arbitrator assumes control
Binding (unless otherwise agreed by the parties)
Confidential
Governed by rules of natural justice

Mediation/ Arbitration
Starts with mediation.
If matter not settled, mediator becomes arbitrator with the task of making a binding
decision.
Parties commit to the process flow at the start
Danger illustrated in Glencot Development
Arbitration/ Mediation
A
rbitration takes place first.
The award is not published but sealed.
Parties move to mediation without knowing what the award was
Administrative Hearing

Tribunal established by statute, to enforce that statute

The tribunal (typically) makes its own rules of procedure
Parties cannot select the members of the administrative tribunal
The tribunal must comply with rules of natural justice but has a lot of discretion
Seaga et al v Isaac et al

Trial/ Litigation
Matter brought in court of law against a defendant based on legal principles and asserting
legal right or entitlement.
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LAW3840

Worksheet 1
ADR
An Overview of ADR

Fixed rules of procedure

Decision based on precedent
Binding
No choice of neutral
The procedure is determined by the civil practice and procedure rules of the Jurisdiction
New Rules: TT Civil Proceedings Rules 1998 (as amended)

The New Rules: TT Civil Proceedings Rules

The procedure is the vehicle to enforce the substantive right which must fit into an
established cause of action
The overriding objective of the TTCPR
TTCPR Part 1.1- to enable the court to deal with cases justly
Claims are set out in documents called Pleadings.
The contents of the pleadings must be in strict compliance with the rules of court
or claims could be struck out.
The Rules of Court also set strict procedural rules for other matters including:
The time frames for service of pleadings (TT Part 5,6,7,10)
How time is computed (TT Part 2)
Computation of costs (TT Part 66-67)
How judgments can be enforced (TT Part 44-55)
Key stages of a Civil Claim:
Pleadings
Case Management Conference (TT Part 25-27)
Pre-Trial Review (TT Part 39)
Trial (TT Part 40)
Judgement (TT Part 43)
Enforcement (TT Part 44-55)
Case Management Conferencing
TT CPR Parts:
25- Courts duty to manage cases
26- Courts power to manage cases
Identify issues and control evidence
Make orders for discovery
Make orders imposing penalties for failure to comply
Strike out pleadings
Award summary judgement
Make orders for costs
27- Case Mgmt. Conference Procedure
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LAW3840

Worksheet 1
ADR
An Overview of ADR

A defining feature of the New Civil Proceeding Rules

The court, not the lawyers have responsibility for the pace of the case
Docket judge assigned from start to end of case
More onerous duties of disclosure on litigants
Takes place after the service of the Defence

Pre- Trial Review

TTCPR Part 39- Directions for Pre-Trial Review
Last chance to settle before trial
Judge encourages settlement, opining on the strength of evidence and witness
statements
Judge narrows the issues and obtain agreements on evidence and anticipated
length of trial

Advantages and Disadvantages of Trial/ Litigation

Advantages

Disadvantages

Binding decision

Does not address interests

Binding precedent

Can miss submerged issues

Procedural safeguards to ensure a fair result

Persons lose control over their disputes

Neutral trained in assessing credibility

Takes very long

Protection of legal rights

Expensive
Neutral lacks expertise
Public
Uncertain
Disruptive of
relationships

business

and

personal

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LAW3840

Worksheet 1
ADR
An Overview of ADR

Disproportionate time and costs for work

done

Philosophical Underpinnings

The principle of negotiated agreement

Facilitating change in a stuck position
Personal empowerment and decision making
Creative and flexible decision making
Potential for healing and relationship preservation
Ethical values
A confidential and secure environment
Attributes, skills and sensitivity
Seeking a beneficial outcome
Overcoming the costs and delays of litigation

Challenges of ADR

Lack of procedural rules raise fears about justice

Quality control issues due to confidentiality
Coordinating the role of the bench and the bar- court annexed ADR
No precedents
Training
Policy issues
Matching cases to suitable ADR methods

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