5. Alternative Dispute Resolution: Non-Adjudicative Options
Early neutral evaluation, conciliation and mediation, including suitability, confidentiality, privilege and preparation.
How to study for BSB Civil Litigation
Prepare separately for closed-book recall and open-book application while keeping every step anchored to the exact syllabus version for your sitting.
Core concepts
Concept 1
Early neutral evaluation gives parties a non-binding assessment that can clarify strengths, risks and a route to settlement.
Exam cue: Ask whether the parties need an imposed outcome, an evaluation, facilitated negotiation or a combination.
Concept 2
A mediator facilitates negotiation but does not impose a decision; effective preparation covers attendees, authority, position statements, key documents and a planned process.
Exam cue: Confirm that the right decision-makers will attend with sufficient settlement authority.
Concept 3
Confidentiality, without-prejudice protection and legal-advice privilege are related but distinct and must be analysed separately.
Exam cue: Identify the legal basis for protecting each communication instead of calling every mediation document privileged.
Risk pitfalls and guardrails
Assuming mediation guarantees a settlement or permits the mediator to decide the dispute.
Guardrail: Do not import a rule or commentary paragraph merely because the White Book cross-refers to it; the BSB syllabus expressly defines what is examinable.
Entering a mediation without authority, valuation evidence or the documents needed to test proposals.
Guardrail: Do not import a rule or commentary paragraph merely because the White Book cross-refers to it; the BSB syllabus expressly defines what is examinable.
Using confidentiality, without prejudice and legal-advice privilege as interchangeable labels.
Guardrail: Do not import a rule or commentary paragraph merely because the White Book cross-refers to it; the BSB syllabus expressly defines what is examinable.
Memory anchors
Early neutral evaluation
A neutral gives a non-binding assessment to clarify risk and support resolution.
Mediation
A neutral facilitates negotiation; the parties retain control of whether and how they settle.
Conciliation
A facilitated non-adjudicative process that may involve a more interventionist neutral.
Mediation preparation
Authority, attendees, position statement, key documents, valuation and settlement range.
Three protections
Confidentiality, without-prejudice protection and privilege have different sources and limits.
Checkpoint rule
Do the check-up only after you can summarize each concept in one sentence and identify one dangerous pitfall from memory.
Knowledge Check (after reading)
Short check-up to confirm understanding of this module.
Check-up Questions
The parties want a respected judge to give an early non-binding view on a decisive issue. Which process should they consider?
At what stage is early neutral evaluation often most useful?
Answer all questions to submit.
Next step personalized recommendations
Continue learning
Move forward only after this module is stable.
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