ACC Europe ADR Forum Shopping What are the

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 2

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

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? ACC Europe Nicola Mumford and Tom Price 4

Types of ADR Process Negotiation Mediation Early Neutral Evaluation Expert Determination Arbitration ADR Forum Shopping: What are the options for dispute resolution outside litigation? ACC Europe Nicola Mumford and Tom Price 5

Types of ADR Process A Spectrum Control ADR Forum Shopping: What are the options for dispute resolution outside litigation? ACC Europe Nicola Mumford and Tom Price 6

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 ADR Forum Shopping: What are the options for dispute resolution outside litigation? — Confidential ACC Europe Nicola Mumford and Tom Price 7

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? ACC Europe Nicola Mumford and Tom Price 8

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? ACC Europe Nicola Mumford and Tom Price 9

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? ACC Europe Nicola Mumford and Tom Price 10

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? ACC Europe Nicola Mumford and Tom Price 11

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? ACC Europe Nicola Mumford and Tom Price 12

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

…continued — Relationship — Confidentiality — Effectiveness — Focus ADR Forum Shopping: What are the options for dispute resolution outside litigation? ACC Europe Nicola Mumford and Tom Price 14

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? ACC Europe Nicola Mumford and Tom Price 15

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? ACC Europe Nicola Mumford and Tom Price 16

Types of ADR Process Who should get involved? Authority Knowledge Perception ADR Forum Shopping: What are the options for dispute resolution outside litigation? ACC Europe Nicola Mumford and Tom Price 17

Types of ADR Process Which organisations will assist? Mediation — CEDR — ADR Group — Ad Hoc Mediations Arbitration — ICC ADR Forum Shopping: What are the options for dispute resolution outside litigation? — LCIA — CDP — Ad Hoc Arbitrations ACC Europe Nicola Mumford and Tom Price 18

Types of ADR Process How does Mediation work? Choose Administrator Agree Mediator Submit key documents and case summary On the day — Plenary ADR Forum Shopping: What are the options for dispute resolution outside litigation? — One to one sessions — Horse trade — Settlement ACC Europe Nicola Mumford and Tom Price 19

Model Dispute Resolution Clauses ADR Forum Shopping: What are the options for dispute resolution outside litigation? ACC Europe Nicola Mumford and Tom Price 20

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 ADR Forum Shopping: What are the options for dispute resolution outside litigation? continued …. ACC Europe Nicola Mumford and Tom Price 21

…. . 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? ACC Europe Nicola Mumford and Tom Price 22

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? ACC Europe Nicola Mumford and Tom Price 23

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

…. continued Differences in ADR bodies Court appointed mediations ADR Forum Shopping: What are the options for dispute resolution outside litigation? ACC Europe Nicola Mumford and Tom Price 25

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 ADR Forum Shopping: What are the options for dispute resolution outside litigation? Costs Appeals ACC Europe Nicola Mumford and Tom Price 26

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 ADR Forum Shopping: What are the options for dispute resolution outside litigation? Action on the award in English Court continued …. ACC Europe Nicola Mumford and Tom Price 27

…. . 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? ACC Europe Nicola Mumford and Tom Price 28

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? ACC Europe Nicola Mumford and Tom Price 29

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? ACC Europe Nicola Mumford and Tom Price 30

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? ACC Europe Nicola Mumford and Tom Price 31

ACC Europe Speakers: Nicola Mumford and Tom Price