ACC Europe ADR Forum Shopping: What are the options for dispute resolution outside litigation?

ACC Europe

ADR Forum Shopping: What are the options for dispute resolution outside litigation?

ACC Europe

ADR Forum Shopping: What are the options for dispute resolution outside litigation?

Speakers, Nicola Mumford and Tom Price

ACC Europe

Nicola Mumford and Tom Price

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ADR Forum Shopping: What are

the options for dispute resolution

outside litigation?

Overview

Context

Types of ADR process: Features, Pros & Cons

Dispute Resolution Clauses

Arbitration/Mediation bodies and rules

Choosing the most appropriate process

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the options for dispute resolution outside litigation?

Context

Dispute resolution in a contractual context

A process is agreed before any dispute

Allows you to set up a particular process

……… but also bound to follow it

The options if there is no alternative dispute resolution clause

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Types of ADR Process

Negotiation

Mediation

Early Neutral Evaluation

Expert Determination

Arbitration

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A Spectrum

Control

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Negotiation - Features

— No third party

— Non binding (until agreement i.e. without prejudice)

— Non judgmental during the process and (on reaching agreement)

— No rules or procedure

— Confidential

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Mediation - Features

— Third party input

— Non binding (until agreement)

— Non-judgmental during process and on reaching agreement

— Generally some informal rules and procedure

— Confidential

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Types of ADR process

Early Neutral Evaluation - Features

— Third party input

— Comments made during the process can be binding

— Judgmental but not binding

— Generally minimal rules and procedure

— Confidential

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Expert Determination - Features

— Third Party input

— Binding process

— Judgmental

— Some rules and procedure

— Confidential

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Arbitration - Features

— Third Party input

— Binding process

— Judgmental

— Heavily rule and process orientated

— Confidential

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When is ADR inappropriate?

— Need an injunction

— Want publicity

— Need a precedent

— Economic Power

— No dispute

— No interest in settlement

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Why ADR and not Litigation?

— Factors vary depending on which ADR process

— Control

— Flexibility

— Forward looking

— Speed

— Cost/Ability to recover costs

continued…

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…continued

— Relationship

— Confidentiality

— Effectiveness

— Focus

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Which ADR Process if no ADR Clause/What ADR Clause you should have?

Need ultimately a binding process

May want to build up by layers

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When to Employ an ADR Process?

Natural Progression – Negotiate, Mediate and Litigate/Arbitrate

Building in early neutral evaluation and expert determination

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Who should get involved?

Authority

Knowledge

Perception

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Which organisations will assist?

Mediation

— CEDR

— ADR Group

— Ad Hoc Mediations

Arbitration

— ICC

— LCIA

— CDP

— Ad Hoc Arbitrations

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How does Mediation work?

Choose Administrator

Agree Mediator

Submit key documents and case summary

On the day

— Plenary

— One to one sessions

— Horse trade

— Settlement

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Model Dispute Resolution Clauses

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Arbitration

The administration of the arbitration

The rules of the proceedings

If contract provides, go to that body

If no provision for a body, can still go to one if parties agree

continued ….

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….. continued

Ad hoc arbitration, i.e. no administrative support or rules Arbitrator makes the rules

Ad hoc arbitration subject to a specified set of rules

Always subject to Arbitration Act

continue ….

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Key differences in the rules, the arbitrators and the fees

Seat of the arbitration

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Mediation

The administration of the mediation

The identity of the arbitrator

Not relevant for procedure

Ad hoc mediations

continued ….

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…. continued

Differences in ADR bodies

Court appointed mediations

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Factors in Deciding which ADR Process to Chose (either if no ADR clause or in deciding what clause to have)

Some overlap with factors relevant to ADR v litigation

Enforcement

Disclosure

Costs

Appeals

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Factors

Enforcement

Negotiated, mediated settlements are agreements

ENE

Expert Determination – not subject to appeal

Arbitration award. Implied agreement (contract or ad hoc agreement) to abide by it

Action on the award in English Court

continued ….

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…..continued

If award was obtained abroad, can enforce in England with limited challenge under the New York Convention

Can be easier than enforcing foreign judgment obtained outside the EU where no reciprocal enforcement by registration

Foreign judgment in EU may be easier. EU

arbitration award requires action on the award

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Factors

Disclosure

Negotiation - none

Mediation - some

ENE/Expert determination – key documents

Arbitration – full

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Factors

Costs

Negotiation – minimal

Mediation – relatively low

ENE/Expert determination – still fairly low

Arbitration – high

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Factors

Appeals

Negotiation/Mediated settlement – does not arise

ENE/ED – no right of appeal

Arbitration – depends on rules used

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Speakers: Nicola Mumford and Tom Price

ACC Europe ADR Forum Shopping: What are the options for dispute resolution outside litigation?

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