What is Alternative Dispute Resolution?

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What is Alternative Dispute Resolution?
The British-Turkish Lawyers Association and The
Law Society of England and WalesAlternative
Dispute Resolution Seminar

• Raichel Hopkinson, Partner, Dispute Resolution,
  Denton Wilde Sapte raichel.hopkinson_at_dentonwildesa
  pte.com
• 18 March 2009

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Alternative Dispute Resolution

• What is it?
• Not court proceedings
• Is used to mean almost any other form of dispute
  resolution, including (in some jurisdictions)
  arbitration
• Different interpretations internationally
• Increasingly common and popular
• Particularly attractive in jurisdictions where
  the court system may be problematic
• Often cheaper, quicker and more practical than
  litigation

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Common forms of ADR

• Arbitration
• Expert Determination
• Mediation

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Arbitration the basics

• Hearings held in private
• Flexible to extent parties can decide on
  applicable rules, location, procedure,
  arbitrators
• Tribunal makes an award which may be final and
  binding
• Awards widely enforceable in New York Convention,
  therefore suits international disputes

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Expert Determination the basics

• Dispute referred to independent third party for
  resolution
• Generally used for specific technical disputes
• Choice and appointment of expert provided for in
  detailed contractual clause
• Decision may be final and binding
• Quick and confidential

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Mediation

• Form of structured negotiation assisted by a
  third party (mediator)
• Mediator is neutral, does not seek to give
  opinion or decision on issues
• Consensual, informal, flexible and non-binding
  process
• Intended to result in binding settlement
  agreement
• Confidential (or as agreed by parties)
• Without prejudice exchanges between parties
  cannot be used outside mediation process
• Increasingly common internationally

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Routes to ADR?

• By agreement contractual clause or subsequent
  agreement
• Agreement may be in the form of an "escalation
  clause" a multi-tiered approach to ADR ending
  with litigation/arbitration
• In the absence of a contractual provision, as a
  result of pressure from the courts, for example
• Parties may attempt ADR before or during court
  proceedings

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Comparison of key features of Arbitration, Expert
Determination and Mediation

• When to use?
• Control
• Speed
• Cost
• Confidentiality
• Finality

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Comparison of key features contd.When to use?

• Arbitration
• International disputes
• Need to enforce
• Expert determination
• Specific technical issues
• Long-term projects
• Mediation
• Scope for commercial compromise
• No need for a precedent

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Comparison of key features contd.Control

• Arbitration
• Complete control based on arbitration clause
• Flexible - rules chosen by parties
• Expert determination
• Control based on contractual clause
• Parties decide issues to be determined
• Mediation
• Parties choose to participate
• Parties determine details of mediation or
  procedure

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Comparison of key features contd.Speed

• Arbitration
• Relatively slow, can take over a year and often
  longer
• Depends on rules chosen and conduct of parties
• Expert determination
• Quicker than arbitration, slower than mediation
• Depends on parties' agreement, the issues and the
  conduct of expert and parties
• Mediation
• Very quick

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Comparison of key features contd.Costs

• Arbitration
• May be costly and lengthy
• "losing" party generally pays costs
• Expert determination
• Cheaper, mainly experts fees
• Parties pay own costs
• Mediation
• Legal and mediator fees
• Terms of settlement

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Comparison of key features contd. Confidentiality

• Arbitration
• Principle of "privacy"
• Varied approach of jurisdictions/institutions
• Subject to applicable court procedures
• Expert determination
• Private and confidential
• Mediation
• Private
• Information is exchanged "without prejudice"
• Enforcement of settlement (if necessary) may lead
  to some disclosure

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Comparison of key features contd. Finality

• Arbitration
• Depends on the parties' agreement
• Limited rights of appeal may be waived
• Expert determination
• Depends on the parties' agreement
• Often a final and binding decision
• Generally very limited right of appeal
• Mediation
• Only if settlement achieved
• Only once settlement agreement signed

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Enforcement

• Arbitration
• New York Convention
• Domestic court procedures
• Expert determination
• Limited rights of enforcement
• Possibly summary judgment
• Mediation
• Settlement agreement
• Breach of contract

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What are other ADR options?

• MedArb or ArbMed
• Early Neutral Evaluation
• Conciliation
• Dispute Review Boards

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Conclusion

• ADR potentially offers cheaper, quicker
  resolution
• Many different forms, important to choose correct
  one
• Key is in drafting of dispute resolution clause
• Evidence suggests that ADR is likely to become
  more popular

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And finally

• Thank you
• raichel.hopkinson_at_dentonwildesapte.com