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BEYOND KNOWN SPACE: ADR in the 4 th DIMENSION

BEYOND KNOWN SPACE: ADR in the 4 th DIMENSION. a presentation by HEW R. DUNDAS Chartered Arbitrator DipICArb CEDR-Accredited Mediator to SINGAPORE INSTITUTE of ARBITRATORS/ LAW SOCIETY of SINGAPORE Tuesday 27 th February 2007. OVERVIEW of PRESENTATION. Introduction

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BEYOND KNOWN SPACE: ADR in the 4 th DIMENSION

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  1. BEYOND KNOWN SPACE:ADR in the 4th DIMENSION a presentation by HEW R. DUNDAS Chartered Arbitrator DipICArb CEDR-Accredited Mediator to SINGAPORE INSTITUTE of ARBITRATORS/ LAW SOCIETY of SINGAPORE Tuesday 27th February 2007

  2. OVERVIEW of PRESENTATION • Introduction • Dispute Resolution Options • Forms of ADR • Some Key Issues • Conclusions

  3. DISPUTE RESOLUTION OPTIONS • Litigation • Arbitration Domestic/International • Expert Determination • Mediation • Other ADR • Advantages and Disadvantages

  4. FORMS OF ADR • Determinative • Expert Determination • Adjudication • Pendulum/Baseball/Flip-Flop Arbitration • Other • Non-Determinative • Mediation/Conciliation • ENE/PMTs/DABs/DRBs • Med-Arb and Arb-Med • Other

  5. EXPERT DETERMINATION • Historical Origins • Comprehensive English Case Law • Use of Expert’s Expertise • Applicability of Rules of Natural Justice • Expert Has Procedural Free Hand • Severe Limits on Grounds for Challenge • Robust Support by English Courts • Enforcement

  6. FORMS OF ADR: NON-DETERMINATIVE • Executive Negotiation • Early Neutral Evaluation (ENE) • Private Mini-Trials • DABs & DRBs • Mediation/Conciliation • Med-Arb and Arb-Med • Arbitrediation • Other/None of the Above

  7. SOME KEY ISSUES • Enforcement • User Reluctance to try Something New • Lawyer Resistance • Med-Arb faces difficulties in England • Problems with Issue of Consent Awards • Arb-Med IS a (the) Solution !!

  8. MED-ARB IN ENGLAND (1) • Effectively ‘outlawed’ by Glencot v Barrett • Adjudicator acted as Mediator • Private sessions • Partially successful, reverted to Adjudication • Decision set aside for Apprehended Bias • Decision unhelpful, unduly restrictive • English law goes too far i.r.o. bias • Appoint Arbitrator + Mediator

  9. MED-ARB IN ENGLAND (2) • Weissfisch v Julius/Ors [2006] EWCACiv218 • J is arbitrator in dispute A vs R • J formerly legal advisor to each of A and R • J legal advisor to company at heart of dispute • J had acted as mediator between A & R • Parties fully informed/advised • A sought injunction to stop J arbitrating • CoA refused to grant injunction • CoA refused to disturb arbitration agreement

  10. DIFFICULTIES withCONSENT AWARDS • Cannot convert mediated Settlement Agreement into Consent Award: no dispute left to arbitrate • Use of Consent Awards for Money-Laundering e.g. in USA • Consent Awards at risk under Proceeds of Crime Act/Money-Laundering Regulations

  11. ARB-MED is the ANSWER • Arbitral proceedings (e.g. accelerated) • Issue Award in Sealed Envelope • Arbitrator commences a Mediation • If successful, destroy Award unread • If unsuccessful, open Award • Glencot v Barrett irrelevant/inapplicable

  12. CONCLUSIONS (1) • Widen The Options/Expand the Toolkit • Think ‘outside the box’ • Creative Solutions to Modern Problems • Take Risks – Caution is Expensive ! • Lose Fear of P/I Risks

  13. CONCLUSIONS (2) THANK YOU for listening to me this evening

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