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

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

2. ACC Europe ADR Forum Shopping: What are the options for dispute resolution outside litigation? Speakers, Nicola Mumford and Tom Price

3. Overview • Context • Types of ADR process: Features, Pros & Cons • Dispute Resolution Clauses • Arbitration/Mediation bodies and rules • Choosing the most appropriate process ADR Forum Shopping: What are the options for dispute resolution outside litigation?

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

5. Types of ADR Process • Negotiation • Mediation • Early Neutral Evaluation • Expert Determination • Arbitration ADR Forum Shopping: What are the options for dispute resolution outside litigation?

6. Types of ADR Process • A Spectrum • Control ADR Forum Shopping: What are the options for dispute resolution outside litigation?

7. Types of ADR Process • 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 ADR Forum Shopping: What are the options for dispute resolution outside litigation?

8. Types of ADR Process • Mediation - Features • Third party input • Non binding (until agreement) • Non-judgmental during process and on reaching agreement • Generally some informal rules and procedure • Confidential ADR Forum Shopping: What are the options for dispute resolution outside litigation?

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

10. Types of ADR Process • Expert Determination - Features • Third Party input • Binding process • Judgmental • Some rules and procedure • Confidential ADR Forum Shopping: What are the options for dispute resolution outside litigation?

11. Types of ADR process • Arbitration - Features • Third Party input • Binding process • Judgmental • Heavily rule and process orientated • Confidential ADR Forum Shopping: What are the options for dispute resolution outside litigation?

12. Types of ADR process • When is ADR inappropriate? • Need an injunction • Want publicity • Need a precedent • Economic Power • No dispute • No interest in settlement ADR Forum Shopping: What are the options for dispute resolution outside litigation?

13. Types of ADR process • Why ADR and not Litigation? • Factors vary depending on which ADR process • Control • Flexibility • Forward looking • Speed • Cost/Ability to recover costs continued… ADR Forum Shopping: What are the options for dispute resolution outside litigation?

14. …continued • Relationship • Confidentiality • Effectiveness • Focus ADR Forum Shopping: What are the options for dispute resolution outside litigation?

15. Types of ADR Process 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 ADR Forum Shopping: What are the options for dispute resolution outside litigation?

16. Types of ADR Process When to Employ an ADR Process? • Natural Progression – Negotiate, Mediate and Litigate/Arbitrate • Building in early neutral evaluation and expert determination ADR Forum Shopping: What are the options for dispute resolution outside litigation?

17. Types of ADR Process Who should get involved? • Authority • Knowledge • Perception ADR Forum Shopping: What are the options for dispute resolution outside litigation?

18. Types of ADR Process Which organisations will assist? • Mediation • CEDR • ADR Group • Ad Hoc Mediations • Arbitration • ICC • LCIA • CDP • Ad Hoc Arbitrations ADR Forum Shopping: What are the options for dispute resolution outside litigation?

19. Types of ADR Process 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 ADR Forum Shopping: What are the options for dispute resolution outside litigation?

20. Model Dispute Resolution Clauses ADR Forum Shopping: What are the options for dispute resolution outside litigation?

21. Arbitration/Mediation bodies and rules 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 …. ADR Forum Shopping: What are the options for dispute resolution outside litigation?

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

23. Arbitration/Mediation bodies and rules • Key differences in the rules, the arbitrators and the fees • Seat of the arbitration ADR Forum Shopping: What are the options for dispute resolution outside litigation?

24. Arbitration/Mediation bodies and rules Mediation • The administration of the mediation • The identity of the arbitrator • Not relevant for procedure • Ad hoc mediations continued …. ADR Forum Shopping: What are the options for dispute resolution outside litigation?

25. …. continued • Differences in ADR bodies • Court appointed mediations ADR Forum Shopping: What are the options for dispute resolution outside litigation?

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

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

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

29. Factors Disclosure • Negotiation - none • Mediation - some • ENE/Expert determination – key documents • Arbitration – full ADR Forum Shopping: What are the options for dispute resolution outside litigation?

30. Factors Costs • Negotiation – minimal • Mediation – relatively low • ENE/Expert determination – still fairly low • Arbitration – high ADR Forum Shopping: What are the options for dispute resolution outside litigation?

31. Factors Appeals • Negotiation/Mediated settlement – does not arise • ENE/ED – no right of appeal • Arbitration – depends on rules used ADR Forum Shopping: What are the options for dispute resolution outside litigation?

32. ACC Europe Speakers: Nicola Mumford and Tom Price