Professional negligence at 36pt

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

• Types of ADR Process
• Negotiation
• Mediation
• Early Neutral Evaluation
• Expert Determination
• Arbitration

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

• Types of ADR Process
• A Spectrum
• Control

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

• 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

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

• 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

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

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

• Types of ADR Process
• Expert Determination - Features
• Third Party input
• Binding process
• Judgmental
• Some rules and procedure
• Confidential

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

• Types of ADR process
• Arbitration - Features
• Third Party input
• Binding process
• Judgmental
• Heavily rule and process orientated
• Confidential

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

• Types of ADR process
• When is ADR inappropriate?
• Need an injunction
• Want publicity
• Need a precedent
• Economic Power
• No dispute
• No interest in settlement

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

• 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

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

• continued
• Relationship
• Confidentiality
• Effectiveness
• Focus

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

• 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

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

• 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

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

• Types of ADR Process
• Who should get involved?
• Authority
• Knowledge
• Perception

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

• Types of ADR Process
• Which organisations will assist?
• Mediation
• CEDR
• ADR Group
• Ad Hoc Mediations
• Arbitration
• ICC
• LCIA
• CDP
• Ad Hoc Arbitrations

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

• 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

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

• Model Dispute Resolution Clauses

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

• 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 .

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

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

• Arbitration/Mediation bodies and rules
• Key differences in the rules, the arbitrators and
  the fees
• Seat of the arbitration

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

• Arbitration/Mediation bodies and rules
• Mediation
• The administration of the mediation
• The identity of the arbitrator
• Not relevant for procedure
• Ad hoc mediations
• continued .

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

• . continued
• Differences in ADR bodies
• Court appointed mediations

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

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

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

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

• Factors
• Disclosure
• Negotiation - none
• Mediation - some
• ENE/Expert determination key documents
• Arbitration full

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

• Factors
• Costs
• Negotiation minimal
• Mediation relatively low
• ENE/Expert determination still fairly low
• Arbitration high

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

• Factors
• Appeals
• Negotiation/Mediated settlement does not arise
• ENE/ED no right of appeal
• Arbitration depends on rules used

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ACC Europe Speakers Nicola Mumford and Tom Price